Rice v. USA

Filing 1

OPINION AND ORDER: Dontrell Rice's motion to vacate, set aside or correct his sentence under §2255 is DENIED. A certificate of appealability is DENIED. Signed by Chief Judge Philip P Simon on 11/16/2016. cc: Rice (tc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
DONTRELL RICE,
Defendant.

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No. 2:08CR2-PPS
and
No. 2:16CV219-PPS

OPINION AND ORDER
Dontrell Rice was one of 13 defendants charged with a number of offenses
arising out of a spree of armed bank robberies carried out in Northwest Indiana from
October 2007 to March 2008. On August 28, 2008, Rice entered a plea of guilty to
Counts 2, 3, and 5 of the superseding indictment -- two counts of bank robbery and one
of using and carrying a firearm during and in relation to a crime of violence (a bank
robbery). [DE 115, 134.] Rice was sentenced to concurrent terms of 70 months on the
bank robbery counts, with 7 years to be served consecutively on Count 3, the firearm
count. [DE 257, 258.] The 7-year sentence for Count 3 was mandated by 18 U.S.C.
§924(c)(1)(A)(ii) because Rice was found to have “brandished” a firearm during the
bank robbery. PSR, ¶16, 54. Acting pro se, Rice now seeks to set aside his federal
sentence under 28 U.S.C. §2255. [DE 458.]
Count 3 alleged that Rice used and carried a firearm during and in relation to the
commission of “Aggravated Bank Robbery, as charged in Count 2 of the Superseding
Indictment, in violation of [18 U.S.C. §] 2113(a) and 2113(d).” [DE 27 at 5.] Rice argues

that bank robbery does not qualify as a “crime of violence” required for conviction
under Count 3's §924(c) charge. For purposes of this provision, “crime of violence” is
defined in §924(c)(3) as a felony that:
(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another; or
(B) that by its nature, involves a substantial risk that physical force against the
person or property of another may be used in the course of committing the
offense.
Last year, in Johnson v. United States, 135 S.Ct. 2551, 2557 (2015), the Supreme Court held
that a similar “otherwise involves conduct” clause within the definition of “violent
felony” for purposes of §924(e) -- commonly referred to as the “residual clause” of the
Armed Career Criminal Act -- is unconstitutionally vague and therefore void. This year,
in Welch v. United States, 136 S.Ct. 1257, 1265 (2016), the Supreme Court held that the
Johnson decision announced a new substantive rule that has retroactive effect in cases on
collateral review. Johnson therefore triggered a new one-year statute of limitations to
bring claims under §2255(f)(3).
Rice argues that Johnson invalidates the residual “by its nature” clause of the
“crime of violence” definition in §924(c)(3)(B), and that bank robbery does not meet the
remaining “elements” prong of the definition in §924(c)(3)(A) because the statutory
definition of bank robbery does not have “as an element the use, attempted use, or
threatened use of force.” The bank robbery named in Count 3 as the predicate crime of
violence is in violation of 18 U.S.C. §2113(a) and 2113(d). As relevant here, §2113(a)
applies to one who “by force and violence, or by intimidation, takes, or attempts to take,
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from the person or presence of another...money or any other thing of value belonging
to, or in the care, custody, control, management, or possession of, any bank, credit uion,
or any savings and loan association.” Section 2113(d) is violated by one who, in
committing such a bank robbery, “assaults any person, or puts in jeopardy the life of
any person by the use of a dangerous weapon or device.” Analyzing these statutory
definitions, Rice contends that “[b]ecause neither provision has, as an element, the use,
attempted use, or threatened use of force, armed bank robbery is not a crime of
violence.” [DE 490 at 3.]
The Seventh Circuit’s recent opinion in United States v. Armour, No. 15-2170, 2016
WL 6440383 (7th Cir. Nov. 1, 2016), disposes of Rice’s arguments. Armour also argued
that his federal attempted armed bank robbery did not qualify as a “crime of violence”
under §924(c). Without deciding whether or not the “residual” clause of §924(c) is void
under Johnson, the Seventh Circuit held that bank robbery under §2113(a) and (d) is a
crime of violence under §924(c)’s “elements” clause. Armour at *3. Contrary to Rice’s
contention, the Court of Appeals held that “robbery by intimidation under §2113(a) and
robbery by assault by a dangerous weapon or device under §2113(d) have as an element
the use, attempted use, or threatened use of physical force against the person or
property of another and thus qualify as crimes of violence under §924(c).” Id. at 5.
Like the Court of Appeals in Armour, I need not (and do not) determine Johnson’s
impact on the residual clause of §924(c)(3)(B), because the 7th Circuit has squarely held

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that federal bank robbery under §2113(a) and (d) is a crime of violence under the
“elements” clause of §924(c)(3)(A). Rice’s motion under §2255 will therefore be denied.
I must also consider whether to grant Rice a certificate of appealability. “The
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” RULES GOVERNING SECTION 2255 PROCEEDINGS 11(a). “A
certificate of appealability may issue . . . only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2). To obtain a
certificate of appealability, Rice must show that reasonable jurists could debate whether
his petition should have been resolved differently. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003). Because my decision is based squarely on the Court of Appeals’ recent decision
in Armour, a certificate of appealability will be denied.
ACCORDINGLY:
Dontrell Rice’s motion to vacate, set aside or correct his sentence under §2255
[DE 458] is DENIED.
A certificate of appealability is DENIED.
SO ORDERED this 16th day of November, 2016.

/s/ Philip P. Simon
Chief Judge, U.S. District Court

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