Shuck v. United States Of America

Filing 4

REPORT AND RECOMMENDATIONS denying the 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Nicholas Shuck. Objections to R&R due by 2/14/2017. Signed by Magistrate Judge G. R. Smith on 1/31/17. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
NICHOLAS BRIAN SHUCK,
Movant,
CV416-2 11
CR411-007
UNITED STATES OF AMERICA,
Respondent.

REPORT AND RECOMMENDATION
Guilty-plea convicted for bank robbery in violation of 18 U.S.C.
§ 2113(a), docs. 54 (plea agreement), 53 (judgment),' Nicholas Shuck
moves under 28 U.S.C. § 2255 to have his sentenced vacated. Doc. 72.
He seeks to exploit the new rule announced in Johnson v. United States,
576 U.S. -, 135 S. Ct. 2551 (2015), and made retroactive by Welch v.

United States, 578 U.S. -, 136 S. Ct. 1257 (2016), to neutralize his 168month enhanced' sentence. He also contends his counsel was ineffective
for failing to argue on appeal that the Court erred by not recommending

1

The Court is citing to the criminal docket in CR411-007 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.
2

The enhancement was based upon Shuck's prior convictions for aggravated assault
and bank robbery by force or violence. PSR at ¶11 29, 30-33. He was categorized as a
career offender and assigned a criminal history category of VI pursuant to U.S.S.G.
§4B1.1. Id, at ¶ 39.

substance abuse treatment as part of his sentence. Doc. 72. The
Government opposes. Doc. 75. Review of the parties' briefing shows
that Shuck's motion must be denied.
A. BACKGROUND
Movant was charged with and pled guilty to one count of bank
robbery in violation of 18 U.S.C. § 2113(a). Does. 1 & 53. As part of his
plea agreement, Shuck agreed to the accuracy of the allegations against
him. Doc. 54 at 5. At his plea hearing, he admitted to having committed
(and been convicted of) four prior bank robberies in Connecticut, North
Carolina, Georgia, and Arkansas. Doc. 63 at 17-18 (noting that after his
release from his incarceration for those robberies, it was only "eight
months before [he] relapsed" and committed the instant bank robbery);

see United States v. Shuck, W.D. Ark. No. CR405-40014 (consolidating
W.D. Arkansas cases Nos. CR405-40008, CR404-40035, CR404-40023,
and CR405-40014) at does. 6 (plea agreement) & 10 (judgment imposing
70 months' imprisonment on four counts of bank robbery by force or
violence in violation of 18 U.S.C. § 2113(a) and one count of consipiray to
commit bank robbery in violation of 18 U.S.C. § 371, counted as a single
sentence).
2

The Court asked if he fully understood the ramifications of a guilty
plea, and Shuck testified he did. Id. at 25-28. He said that he had read
the plea agreement, that his attorney had explained it to him, and that it
was consistent with what he and the Government had agreed upon.

Id.

at 29-30; id. at 31 (no one pressured him to enter a guilty plea or made
him any promises not included in the agreement). He also testified that
there was "absolutely not" a thing more his counsel should have done in
representing him, and that she was a "very competent and capable
attorney." Id. at 24. Given all that, Shuck unambiguously stated that he
wished to plead guilty, because he was "in fact guilty." Id. at 32.
He did not object to the facts set forth in the PSR, but movant's
counsel did argue that because his four prior robberies had been
accomplished by "intimidation" rather than by "force or violence" (all
involved handing threatening notes over to cashiers, demanding money,
rather than by brandishing any weapon), they were not truly "crimes of
violence" warranting career offender enhancement under the Sentencing
Guidelines. Doc. 62 at 6, 9-10 2 30-34. The Government responded that a
"crime of violence" involves the attempted use or threatened use of
physical force, and Shuck's note to the teller ("don't panic, empty both
3

drawers now, this is not a joke, you have 30 seconds before I start
shooting") clearly met that definition. Id. at 10-14 (arguing robbery by
intimidation was an "enumerated offense" under the Guidelines).
Based on his four prior bank robberies, the PSR, testimony (both in
support of the facts and in mitigation), and the briefs from counsel and
the Government, the Court sentenced Shuck to 168 months'
imprisonment.

Id. at 41-44. His judgment was affirmed on appeal.

United States v. Shuck, 481 F. App'x 600 (11th Cir. 2012) (rejecting
Shuck's argument that § 2113(a) bank robbery did not qualify as a crime
of violence for career offender enhancement under the Sentencing
Guidelines).
B. ANALYSIS
Shuck presents several grounds for relief: (1) Johnson renders his
sentence unconstitutional (2) this Court erred in failing to consider
mitigating evidence, or recommend his placement in a substance abuse
program; and (3) ineffective assistance of counsel for failing to raise
those errors on appeal. Doc. 72.
1. Career-Offender Predicate Offenses
Movant contends that his prior state convictions for aggravated

assault and bank robbery no longer qualify as ACCA predicates for an
enhanced sentence after Johnson. Doc. 72 at 5. He was not, however,
sentenced as a career offender under the ACCA -- his sentence was
calculated pursuant to the Guidelines. See PSR; docs. 50-51, 53, 54, 62,
63. As the Government notes, this Circuit has held that Johnson does
not apply in the context of the advisory Sentencing Guidelines. Doc. 75
at 2 (citing United States v. Matchett, 802 F. 3d 1185, 1193-94 (11th Cir.
2015)). Every other circuit, however, has held that it does.'

See In re

As discussed by the Eleventh Circuit, as a matter of first impression:
By its terms, the decision of the Supreme Court in Johnson is limited to
criminal statutes that define elements of a crime or fix punishments. The
Supreme Court held that the residual clause of the Armed Career Criminal Act
"violate[d] the Constitution's guarantee of due process," 135 S.Ct. at 2563,
because it violated "[t]he prohibition of vagueness in criminal statutes," id. at
2556-57. It further explained that the vagueness doctrine "appl[ies] not only to
statutes defining elements of crimes, but also to statutes fixing sentences." Id.
at 2557. The Armed Career Criminal Act defines a crime and fixes a sentence,
see 18 U.S.C. § 924(e), but the advisory guidelines do neither.
The Sentencing Guidelines are merely "the starting point and the initial
benchmark," Gall v. United States, 552 U.S. 38, 49 (2007), designed to "assist
the sentencing judge" in determining a sentence, United States v. Tichenor,
683 F.3d 358, 364 (7th Cir. 2012) (quoting United States v. Brierton, 165 F.3d
1133, 1139 (7th Cir. 1999)). In the end, a sentencing judge "must make an
individualized assessment based on the facts presented" and "may not presume
that the Guidelines range is reasonable."
Gall, 552 U.S. at 50. "The
sentencing judge's authority to exercise discretion distinguishes the Guidelines
from criminal statutes in a significant and undeniable manner." Tichenor, 683
F.3d at 365.
Matchett, 802 F.3d at 1194; United States v. Johnson, 2016 WL 6775916 at *1 (11th
Cir. Nov. 16, 2016).
5

Clayton, 829 F.3d 1254, 1256 (11th Cir. 2016) (concurrence) (following
Matchett but cautioning that that every other court of appeals "has
either held or assumed that Johnson makes the language in § 4B 1.2 (a) (2)
of the Sentencing Guidelines unconstitutional.") (citing Beckies v. United

Notably, the Sentencing Commission agrees. As recently summarized by the
Eleventh Circuit:
In response to litigation surrounding Johnson, the Sentencing Commission
amended the Guidelines -- specifically, the career offender enhancement
definition of "crime of violence" -- in August 2016. In so doing, it eliminated
the residual clause and removed burglary from the list of enumerated offenses
that satisfy the definition. U.S.S.G. Supp. to App. C, amend. 798 (Aug. 1,
2016). The current definition of "crime of violence" includes any offense
under federal or state law, punishable by imprisonment for a term exceeding
one year, that
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another, or
(2) is murder, voluntary manslaughter, kidnapping, aggravated assault,
a forcible sex offense, robbery, arson, extortion, or the use or unlawful
possession of a firearm described in 26 U.S.C. § 5845(a) or explosive
material as defined in 18 U.S.C. § 841(c).

Id. The Sentencing Commission indicated that the amendment eliminating
the residual clause from the career offender guideline arose because of
numerous court opinions expressing a view that the definition of "crime of
violence" is unclear. Id.
Johnson, 2016 WL 6775916 at *1.
However, Amendment 798 is not helpful to Shuck because courts apply the version
of the Guidelines in effect on the date of sentencing. Id. at *4 (citing United States v.
Descent, 292 F.3d 703, 707 (11th Cir. 2002)). "While subsequent amendments that
merely clarify the Guidelines should be considered on appeal regardless of the date of
sentencing, United States v. Dedeker, 961 F.2d 164, 166 n.4 (11th Cir. 1992),
Amendment 798 to the career offender enhancement is a substantive change to the
Guideline.... As a substantive change to the Guidelines, Amendment 798 does not
apply retroactively to his sentence." Id. The Court will therefore evaluate Shuck's
prior convictions under the previous version in force at the time of his sentencing
(i.e., November 2011).

States, - U.S. -' 136 S.Ct. 2510 (2016) (granting certiorari as to
whether Johnson applies to the Sentencing Guidelines' definition of
"crime of violence" and, if so, whether the Beckies decision will apply
retroactively to cases on collateral review)); Johnson, 2016 WL 6775916
at *3
Even if Johnson is deemed to apply in this context, Shuck would
still qualify as a career offender. A defendant qualifies as a career
offender under the Guidelines if he is at least 18 years old, has at least
two prior felony convictions for either a crime of violence or a controlled
substance offense, and his instant federal conviction is for either a crime
of violence or a controlled substance offense. U.S.S.G. § 4B1.1(a). An
offense qualifies as a crime of violence if: (1) the defendant committed an
enumerated offense; (2) "the use, attempted use, or threatened use of
physical force against another was an element of the offense;" or (3) "the
conduct for which the defendant was convicted presented a serious risk
of physical injury to another person." United States v. Lockley, 632 F.3d
1238 1 1241 (11th Cir. 2011); U.S.S.G. § 4B1.2(a) (2015). Shuck's
sentencing was based on two prior convictions: one conviction for
Georgia aggravated assault and four convictions for bank robbery by
7

force or violence in violation of 18 U.S.0 § 2113(a) (see Shuck, W.D. Ark.
No. CR405-40014, consolidated and counted as a single sentence). PSR
at ¶IT 29 & 30; see also doe. 62 at 31-33, 43-44 (sentencing hearing
transcript).
Shuck never robbed a bank using a weapon. Rather, he would slip
a note to a teller with a threat.

See PSR at ¶ 30 ("Don't panic. Just

empty the drawer of everything but the singles and no one gets hurt.
This is not a joke. And hurry up."); PSR at ¶ 31 ("DON'T PANIC!!!
Empty the Fking drawer and no one gets hurt."); see also Shuck, W.D.
Ark. No. CR405-40014 at does. 6 (plea agreement) & 10 (judgment
imposing 70 months' imprisonment on four counts of bank robbery by
force or violence in violation of 18 U.S.C. § 2113(a) and one count of
conspiracy to commit bank robbery in violation of 18 U.S.C. § 371).
Movant unsuccessfully argued at sentencing (and on appeal) that

To determine the statutory basis for conviction, a court may consult certain
"Shepard" documents such as charging documents, plea agreements, transcripts of
plea colloquies, jury instructions, and verdict forms. Johnson v. United States, 559
U.S. 133, 144 (2010). Undisputed facts contained in a Presentence Investigative
Report may also be used in determining the statutory basis for conviction. In re
Hires, 825 F.3d 1297, 1302 (11th Cir. June 15, 2016) (citing United States v.
McCloud, 818 F.3d 591, 595, 599 (11th Cir. 2016)); United States v. Ramirez-Flores,
743 F.3d 816, 820 (11th Cir. 2014); United States v. Wade, 458 F.3d 1273, 1277-78
(11th Cir. 2006).
rs

his bank robberies -- accomplished without brandishing or possessing a
weapon -- were "by intimidation" rather than "by force or violence"
within the meaning of the Sentencing Guidelines.

See Shuck, 481 F.

App'x 600 (rejecting Shuck's "attempt to differentiate two categorically
different crimes from this statute, one of which is a crime of violence
('force and violence') and the other of which is not ('intimidation')").
Nothing in Johnson undermines the Eleventh Circuit's resounding
denial of his appel. Bank robbery convictions under only § 2113(a) (those
that do not involve an assault or the use of a dangerous weapon, as
required under § 2113(d)), remain enhancement-triggering "crimes of
violence" under the Sentencing Guidelines post-Johnson. In re Sams,
830 F.3d 1234 1 1239 (11th Cir. 2016) (quoting United States v. McNeal,
818 F.3d 141 1 153 (4th Cir. 2016)).
In discussing a conviction arising under § 2113(a), McNeal noted:
A taking "by force and violence" entails the use of physical force.
Likewise, a taking "by intimidation" involves the threat to use such
force.
t]here is no space between 'bank robbery' and 'crime of
violence' " because "violence in the broad sense that includes a
merely threatened use of force is an element of every bank
robbery."
..

.

"[

Put succinctly, . . . [blank robbery under § 2113(a), "by force and
violence," requires the use of physical force. Bank robbery under
§ 2113(a), "by intimidation," requires the threatened use of
physical force. Either of those alternatives includes an element
that is "the use, attempted use, or threatened use of physical
force," and thus bank robbery under § 2113(a) constitutes a crime
of violence under the force clause of § 924(c)(3).
818 F.3d at 153 (cites and alterations omitted), quoted in Sams, 830 F.3d
at 1239. Even assuming Johnson retroactively applies to the Sentencing
Guidelines, it provides movant no succor here.
Notably, Shuck also had another violent crime under his belt -aggravated assault. PSR at ¶ 29 (he pled guilty to aggravated assault,
among other charges, after an altercation involving a police officer and a
moving vehicle). Movant admits he was so convicted (though he
contends, without support, that it is no longer considered a violent crime
under Georgia statutes). See doe. 72 at 5. And parties are bound by the
admissions in their pleadings. Best Canvas Prods. & Supplies, Inc. v.

Ploof, 713 F.2d 618, 621 (11th Cir. 1983). Too, this Court has repeatedly
held a Georgia aggravated assault is a "violent felony" under the
elements clause of the ACCA (and, by extension, the Guidelines) post-

Johnson. See Green v. United States, No. CV416-198 at 7-9 (S.D. Ga.
Jan. 9, 2017); Hayward v. United States, 2016 WL 5030373 at *3 (S.D.
10

Ga. Sept. 19, 2016); Neesmith v. United States, 2016 WL 1688780 at * 2
n. 2 (S.D. Ga. Apr. 26, 2016). Based on the undisputed facts in his PSR
and his admission in pleadings, Shuck's conviction for aggravated assault
certainly falls within the elements clause of the definition of a "violent
crime."
Between his bank robbery and aggravated assault convictions,
Shuck glided into career-offender territory.

See PSR at ¶ 37 & 39

(because his four bank robbery convictions were counted as a single
sentence, for the purpose of the career-offender calculation only one
bank robbery conviction was considered; however, that meant Shuck still
had "two prior felony convictions involving crimes of violence:
aggravated assault and bank robbery by force or violence. As such,
pursuant to the provisions found in U.S.S.G. § 4B1.1, [he] is a career
offender and [his] criminal history category must be VI."). Movant was
properly considered a career offender under the Guidelines.
2. District Court Errors & Ineffective Assistance
Shuck argues that the Court erred by failing to consider mitigating
facts or circumstances or to recommend his placement in a substance
abuse program, and he faults his attorney for not so arguing on appeal.
11

Doc. 72 at 6. These claims, however, are untimely.

Johnson has no

impact on the validity of his sentence. It follows that movant cannot
look to § 2255(1)(3) to define when his one-year statute of limitations
began to run. Instead, he's relegated to § 2255(1)(1), which dictates that
the clock stated the day his conviction became final (July 23, 2012) and
ran out on July 23, 2013 (one year later). See doc. 69 (judgment denying
appeal and affirming conviction) •6
Even assuming this otherwise untimely claim could be considered,
however, his criticisms of the trial court's actions are procedurally
defaulted because he failed to raise them on direct appeal (see Shuck, 481
F. App'x 600). Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir.
2004) (a movant may not use his collateral attack as "a surrogate for a
direct appeal"). His associated, meritless IAC claim does not overcome
that bar. See United States v. Montano, 398 F.3d 1276 1 1279-80 (11th
Cir. 2005); United States v. Nyhuis, 211 F.3d 1340, 1343-44 (11th Cir.

6

Equitable tolling can, in exceptional circumstances, allow untimely motions to
proceed. See Holland v. Florida, 560 U.S. 631, 649 (2010). So can a "fundamental
miscarriage of justice" that "has probably resulted in the conviction of one who is
actually innocent." Fail, 2016 WL 1658594 at * 4 (quoting McQuiggin v. Perkins,
133 S. Ct. 1924, 1931 (2013)). Movant invokes neither tolling nor the miscarriage
exception, and he offers no new evidence or exceptional circumstances to trigger
either.
12

2000).
Shuck argues -- contrary to the record -- that the Court failed to
fully appreciate the mitigating circumstances of his past (including a
difficult childhood and parental drug addiction passed on to him) or
recommend substance abuse treatment (or make it a requirement of his
sentence). Doc. 72 at 6. But the Court did listen to movant's testimony
(as well as that of his kin), and it took those matters fully into
consideration before determining that his sentence was appropriate, in
light of his lengthy and repetitious criminal history as a bank robber,
undeterred by repeated incarcerations. See does. 62 & 63.
The constitutional right to appellate representation does not
include a right to present frivolous arguments to the court.

McCqy v.

Court of Appeals of Wisconsin, Dist. 1, 486 U.S. 429, 436 (1988); Jones

V.

Barnes, 463 U.S. 745 1 754 (1983) ("Nothing in the Constitution or our
interpretation of that document requires" an appellate attorney "to raise
every 'colorable' claim suggested by a client."). The appellate "attorney
need not advance every argument, regardless of merit, urged by the
appellant . . . ."

Evitts v. Lucey, 469 U.S. 387 1 394 (1985). Shuck's

contention that counsel should have argued that the district court failed
13

to fully account for his motivation in robbing banks (i.e., drug addiction),
despite the clear record to the contrary, is without merit.

C. CONCLUSION
Accordingly, Nicholas Shuck's § 2255 motion should be DENIED.
For the reasons set forth above, it is plain that he raises no substantial
claim of deprivation of a constitutional right. Accordingly, no certificate
of appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b);
Rule 11(a) of the Rules Governing Habeas corpus Cases Under 28 U.S.C.
§ 2255 ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").
Any motion for leave to appeal in forma pauperis therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Magistrate Judge's Report and Recommendations." Any
request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.
14

After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge's findings and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x
542 1 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED, this 31st day of
January, 2017.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

15