Strandberg v. USA
Filing
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ORDER - The Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. 2255 (ECF No. 89 filed in case 2:13-cr-00322), the Motion to Defer Ruling (ECF No. 90 in case2:13-cr-00322), and a certificate of appealability are DENIED.. Signed by Judge Robert C. Jones on 5/24/2017. (Copies have been distributed pursuant to the NEF - DRM)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Defendant pled guilty to two counts of bank robbery, and the Court sentenced him to 180
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Plaintiff,
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vs.
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DANIEL LEE STRANDBERG,
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Defendant.
2:13-cr-00322-RCJ-VCF-1
ORDER
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months of imprisonment. Defendant filed a motion for habeas corpus relief, arguing that the
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residual clause allegedly applied to him under U.S.S.G. § 4B1.2(a)(2) is unconstitutionally
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vague. The Supreme Court has since ruled, however, that “the Guidelines are not amenable to a
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vagueness challenge.” Beckles v. United States, 137 S. Ct. 886, 894 (2017). Even if they were,
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Defendant’s claim would fail, because the physical-force clause of § 4B1.2(a)(1) applies to bank
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robbery. United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000).1
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Although the Court of Appeals used the term “armed bank robbery” in Wright, it did so
not because only armed bank robbery under § 2113(d) qualifies as a crime of violence but
because the defendant in Wright who was challenging a compound weapons offense had in fact
committed armed bank robbery. The Court of Appeals reasoned, however, that simple bank
robbery under § 2113(a) qualifies as a categorical crime of violence under the physical force
clause of § 924(c)(3)(A). See id. (quoting and citing 18 U.S.C. § 2113(a)) (“Armed bank robbery
qualifies as a crime of violence because one of the elements of the offense is a taking ‘by force
and violence, or by intimidation.’”). The quoted offense element is found in § 2113(a), i.e.,
simple bank robbery, without reference to subsection (d), which simply provides enhanced
penalties for armed bank robbery.
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Defendant has filed a notice of voluntary dismissal invoking Civil Rule 41(a)(1)(A)(i), to
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which the Government has objected, arguing that the Court should deny the § 2255 motion on the
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merits. The Court agrees with the Government. The Civil Rules may apply insofar as not
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inconsistent with § 2255 or the Section 2255 Rules, but application of the Civil Rules is
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discretionary with the district court, not mandatory. See Section 2255 Rule 12 (“may be
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applied”). The Court declines to apply Rule 41 to permit Defendant to avoid a merits dismissal
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of a motion that was plainly without merit under Wright when filed, regardless of Beckles.
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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Vacate, Set Aside, or Correct Sentence
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Under 28 U.S.C. 2255 (ECF No. 89), the Motion to Defer Ruling (ECF No. 90), and a certificate
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of appealability are DENIED.
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IT IS SO ORDERED.
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DATED: 25th day of of May, 2017.
Dated thisThis 24th dayApril, 2017.
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___________________________________
ROBERT C. JONES
United States District Judge
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