Spencer v. USA
ORDER - Movant's amended § 2255 motion (Doc. 11) is DENIED without an evidentiary hearing, and the Court declines to issue a certificate of appealability. Signed on 8/28/17 by Chief District Judge Greg Kays. (Strodtman, Tracy)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
(Crim. No. 4:14-CR-0164-03-DGK)
ORDER DENYING AMENDED MOTION TO SET ASIDE JUDGMENT
Movant Charles Spencer pled guilty under a plea agreement to aiding and abetting armed
bank robbery (Count One) and aiding and abetting the possession of a firearm in furtherance of a
crime of violence (Count Two), a violation of 18 U.S.C. § 924(c). The Court sentenced Movant
to a total of 102 months’ imprisonment.
Movant subsequently filed the pending amended motion to vacate Count Two of the
indictment under 28 U.S.C. § 2255 (Doc. 11). A district court may vacate a federal conviction if
it “was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. §
2255(a). Movant contends his sentence is unlawful in the wake of Johnson v. United States, 135
S. Ct. 2551 (2015), arguing armed bank robbery no longer qualifies as a predicate crime of
violence under § 924(c).
Assuming for the sake of argument that Movant’s raising this claim in a § 2255 petition
does not violate the provision of his plea agreement waiving his right to collaterally attack his
sentence, and that he did not procedurally default this claim by failing to raise it in a direct
appeal, Movant’s claim lacks merit. In Allen v. United States, the Eighth Circuit Court of
Appeals reaffirmed in the wake of Johnson its long-held stance that bank robbery is a crime of
violence under § 924(c)(3)(A). 836 F.3d 894, 894 (8th Cir. 2016). Movant’s claim that armed
bank robbery is not a crime of violence under § 924(c)(3)(B) is also unavailing because the
Eighth Circuit has also held recently that Johnson’s reasoning does not apply to § 924(c)(3)(B)’s
“risk-of-force” prong either. United States v. Prickett, 839 F.3d 697, 699-700 (8th Cir. 2016).
Because Movant’s claim is foreclosed by recent Eighth Circuit caselaw, it is denied.
Where a motion raises no disputed question of fact, an evidentiary hearing is not
required. United States v. Meyer, 417 F.2d 1020, 1024 (8th Cir. 1969). There are no disputed
questions of fact here, so no evidentiary hearing will be held.
Finally, the Court holds no reasonable jurist would grant this motion and so declines to
issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000); 28 U.S.C.
In conclusion, Movant’s amended § 2255 motion (Doc. 11) is DENIED without an
evidentiary hearing, and the Court declines to issue a certificate of appealability.
IT IS SO ORDERED.
Date: August 28, 2017
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
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