JEREMY JERMAIN SUGGS v. USA

Filing 2

ORDER denying 1 Motion to Vacate 2255 and denying certificate of appealability. Signed by Judge Robert C. Jones on 6/7/16. (Copies have been distributed pursuant to the NEF - JC)

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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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A grand jury indicted Defendant Jeremy Suggs of armed bank robbery in violation of 18

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Plaintiff,
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vs.
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JEREMY JERMAIN SUGGS,
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Defendant.

2:05-cr-00319-RCJ-PAL-1
ORDER

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U.S.C. § 2113 and possession of a firearm during and in relation to a crime of violence in

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violation of 18 U.S.C. § 924(c)(1)(A)(i). (See Indictment, ECF No. 1). Defendant pleaded guilty

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to both counts, and on March 5, 2007 the Court sentenced him to consecutive 125- and 120-

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month terms of imprisonment, to be followed by consecutive five- and three-year terms of

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supervised release. (See J. 1–3, ECF No. 36). The Court of Appeals affirmed the reasonableness

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of the sentence but reversed for reentry of judgment with the terms of supervised release to run

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concurrently. The Court entered the Amended Judgment on March 19, 2008. (See Am. J. 13,

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ECF No. 51). Plaintiff has now asked the Court to vacate, set aside, or correct his sentence under

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28 U.S.C. § 2255. The motion is statutorily timely.

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A 1-year period of limitation shall apply to a motion under this section. The
limitation period shall run from the latest of . . . the date on which the right asserted
was initially recognized by the Supreme Court, if that right has been newly
recognized by the Supreme Court and made retroactively applicable to cases on
collateral review . . . .
28 U.S.C. § 2255(f), (f)(3). Defendant filed the motion on May 13, 2016, which is within one

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year of June 26, 2015, the date on which the Supreme Court announced the rule of Johnson v.

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United States, 135 S. Ct. 2551 (2015) upon which Defendant relies. The Supreme Court has

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made Johnson retroactive on collateral review. See Welch v. United States, 136 S. Ct. 1257, 1268

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(2016).

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But even assuming for the sake of argument that the claim is not procedurally

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defaulted—which it almost certainly is based on Defendant’s failure to raise the vagueness issue

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in the trial court or on appeal—the claim is without merit. Defendant does not allege he was

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sentenced as a violent career criminal under the now-void residual clause of 18 U.S.C.

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§ 924(e)(2)(B), see Johnson, 135 S. Ct. at 2563, but that his conviction for possession of a

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firearm during and in relation to a crime of violence under § 924(c)(1)(A) was entirely void

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because the predicate crime of armed bank robbery under § 2113 was not a “crime of violence”

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under § 924(c)(3).

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Johnson is no aid to Defendant here. First, Johnson invalidated the residual clause of

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§ 924(e)(2)(B) defining prior violent felonies, not the residual clause of § 924(c)(3)(B) defining

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crimes of violence. Those clauses are similar, but not identical. Second, even assuming for the

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sake of argument that the residual clause under § 924(c)(3)(B) is likewise unconstitutionally

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vague,1 Defendant was not convicted based on that clause but rather the physical-force clause of

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§ 924(c)(3)(A), which the Court of Appeals has ruled includes bank robbery as a predicate

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offense. United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000) (“Armed bank robbery

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qualifies as a crime of violence because one of the elements of the offense is a taking ‘by force

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and violence, or by intimidation.’” (quoting 18 U.S.C. § 2113(a)).

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The only court of appeals to rule on the issue to date has rejected such an argument, see
United States v. Taylor, 814 F.3d 340, 375–79 (6th Cir. 2016), although the Court of Appeals has
invalided a different statute with language identical to § 924(c)(3)(B) in light of Johnson, see
Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015).

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CONCLUSION
IT IS HEREBY ORDERED that the Motion to Vacate, Set Aside or Correct Sentence

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Pursuant to 28 U.S.C. § 2255 (ECF No. 55) and the Motion to Appoint Counsel (ECF No. 56)

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are DENIED.

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IT IS FURTHER ORDERED that a certificate of appealability is DENIED.

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IT IS SO ORDERED.

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DATED: 18th th day May, 2016.
Dated thisThis 7day of of June, 2016.

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___________________________________
ROBERT C. JONES
United States District Judge

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