Deiter v. United States of America

Filing 25

ORDER ADOPTING 23 REPORT AND RECOMMENDATIONS by District Judge Martha Vazquez; OVERRULING 24 Objections filed by Walter Lee Deiter and DENYING 3 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) filed by Walter Lee Deiter. See Order for Specifics. (gr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

CIV 15-1181 MV/KBM
CR 10-0622 MV

WALTER LEE DEITER,
Defendant.

ORDER OVERRULING DEFENDANT’S OBJECTIONS AND ADOPTING THE
CHIEF MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on the Chief Magistrate Judge’s
Proposed Findings and Recommended Disposition (“PF&RD”) (Doc. 23)1, filed April 24,
2017, and on Defendant Walter Lee Deiter’s Objections to that PF&RD (“Defendant’s
Objections”) (Doc. 24), filed on May 8, 2017.
In her PF&RD, the Chief Magistrate Judge recommended that Defendant Walter
Lee Deiter’s Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. §
2255 be denied and that his claims be dismissed with prejudice. See Doc. 23. She
concluded that Mr. Deiter had not established ineffective assistance of counsel or
prejudice with respect to his trial counsel’s reading aloud of excerpts of a belt tape
transcript, his failure to obtain EMT reports or to call EMT personnel as witnesses, or his
failure to argue that Mr. Deiter’s prior bank robbery conviction did not qualify as a
predicate offense under the ACCA. Id. at 8-15. Similarly, she concluded that Mr. Deiter
had not established ineffective assistance or prejudice with regard to the filing of an
1

Citations to “Doc.” refer to docket numbers filed in Civil Case No. 16-0563 MV/KBM.

appellate brief by appellate counsel. Id. at 15-16. Finally, the Chief Magistrate Judge
recommended that this Court reject Mr. Deiter’s position that a conviction for aiding and
abetting a federal bank robbery is not a “violent felony” under the force clause of the
Armed Career Criminals Act (“ACCA”) following Johnson v. United States, 135 S. Ct.
2551 (2015) (“Johnson II”). Id. at 16-29. Mr. Deiter now asks this Court to reject these
recommendations by the Chief Magistrate Judge and to, instead, grant his § 2255
Motion.
When a party files timely-written objections to a magistrate judge’s
recommendation, the district court will conduct a de novo review and “may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(C). De novo review requires the district judge to
consider relevant evidence of record and not merely to review the magistrate judge’s
recommendation. In re Griego, 64 F.3d 580, 583-84 (10th Cir. 1995). “[A] party’s
objections to the magistrate judge’s [PF&RD] must be both timely and specific to
preserve an issue for de novo review by the district court or for appellate review.”
United States v. One Parcel of Real Prop., with Buildings, Appurtenances,
Improvements, & Contents, 73 F.3d 1057, 1060 (10th Cir. 1996).
Here, the Court conducts a de novo review of the record and considers Mr.
Deiter’s objections to the PF&RD, of which there are three: (1) that Mr. Deiter’s trial
counsel’s decision to read aloud portions of the belt tape transcript was constitutionally
unreasonable and prejudicial to Mr. Deiter; (2) that Mr. Deiter’s prior conviction for
aiding and abetting a federal bank robbery in violation of 18 U.S.C. § 2 does not satisfy
the ACCA’s force clause; and (3) that federal bank robbery under 18 U.S.C. § 2113(a)

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does not satisfy the ACCA’s force clause. Doc. 24. Each of these arguments were
made by Mr. Deiter in his briefing to the Court prior to the issuance of the PF&RD;
however, he has developed these arguments more fully in his Objections, responding to
the analysis of the Chief Magistrate Judge’s in her PF&RD.
A. Whether Trial Counsel’s Reading Aloud of Belt Tape Transcript Excerpts
was Unreasonable and Prejudicial.
At trial, the undersigned ruled that the belt tape transcripts of Officer Patricia
Whelan were not admissible, other than for impeachment purposes. See Doc. 224 at
247. However, when Officer Whelan’s trial testimony revealed that she could not recall
portions of the incident in question, Mr. Deiter’s trial counsel, Ryan Villa, sought to
refresh her recollection with the previously-excluded belt tape transcript. Id. at 244.
Upon clarifying that he did not seek admission of the transcript, but instead intended to
use it only for refreshing Officer Whelan’s recollection, the Court permitted Mr. Villa to
read portions of the transcript to Officer Whelan in the presence of the jury. Id. at 25054. The portion of the transcript read aloud included a statement by an unidentified
witness at the apartment complex that she heard a man yelling at a woman outside and
that he “had a gun.” Doc. 225 at 7. Responding to questioning by Mr. Villa, Officer
Whelan admitted that the transcript did not include a request that this witness provide
her name or address. Id. at 9.
Acknowledging that it was a close question, the Chief Magistrate Judge
ultimately concluded that Mr. Deiter had not demonstrated that Mr. Villa was ineffective
when he read this transcript excerpt, given the strong presumption against such a
finding. As to whether Mr. Deiter was prejudiced, she offered the following rationale:

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Even if the presiding judge disagrees, finding Mr. Villa’s decision to
read aloud the transcript unreasonable, Deiter cannot show prejudice
in the face of the evidence presented against him. To summarize: the
jury heard testimony that Officer Whelan, responding to a middle-ofthe-night call regarding an altercation in a parking lot, observed [Mr.
Deiter] nervously squatting behind a wall on a second-floor apartment
breezeway. When she dispatched a fellow officer to determine what
Deiter may have dropped on that breezeway, Deiter began to run. The
fellow officer’s inspection of the breezeway revealed a holster
containing a revolver, which officers testified they did not touch without
the use of gloves. A forensic scientist testified that DNA testing
revealed that the firearm contained two people’s DNA, with Deiter’s
being the major contributor, and that the holster contained only Deiter’s
DNA. The scientist also testified that the probability that another
Caucasian person would have the same DNA provide as [Mr. Deiter]
was one in 140 sextillion.
Officer Whelan’s observations, combined with this strong, scientific
evidence linking Deiter to the firearm, can only be described as
overwhelming evidence that Deiter did in fact possess the firearm in
question.
Doc. 23 at 14.
Without passing upon the reasonableness of Mr. Villa’s decision to read aloud
portions of the belt tape transcript, the Court agrees with the Chief Magistrate Judge
that Mr. Deiter was not ultimately prejudiced by this decision. While Mr. Deiter insists
that the transcript provided the only direct evidence that placed the firearm in his hand,
the Court cannot say that but for Mr. Villa’s reading of this transcript the result of his jury
trial would have been any different. See Ellis v. Raemisch, 856 F.3d 766 (10th Cir.
2017). While Officer Whelan did not testify to having an unobscured view of Mr. Deiter
holding the firearm, she did testify that she saw him squat behind the wall in the same
location where the firearm was ultimately found. Indeed, Mr. Deiter’s conduct led her to
dispatch a fellow officer to determine what Mr. Deiter had left behind the wall. As

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discussed, both the firearm and the holster recovered from the breezeway contained
Mr. Deiter’s DNA, and the holster contained only Mr. Deiter’s DNA.
Although the Court, like the Chief Magistrate Judge, questions whether Mr. Villa’s
decision to read aloud from the belt tape transcript was the most productive strategy, in
light of the other evidence presented against Mr. Deiter it is unwilling to say that the
decision “so undermined the proper functioning of the adversarial process that the trial
cannot be relied on as having produced a just result.” See Strickland v. Washington,
466 U.S. 668, 686 (1984). The Court overrules Mr. Deiter’s first objection.
B. Whether aiding and abetting a bank robbery in violation of 18
U.S.C. § 2 satisfies the ACCA’s force clause.
Mr. Deiter argues that pursuant to United States v. Fell, 511 F.3d 1035 (10th Cir.
2007) and United States v. Martinez, 602 F.3d 1166 (10th Cir. 2010) aiding and abetting
a federal bank robbery does not constitute a violent felony under the force clause of the
ACCA. Doc. 24 at 5-9. Fell and Martinez involved inchoate crimes – conspiracy and
attempt, respectively. In Fell, the court determined that because conspiracy to commit
second-degree burglary did not require a person to perform an overt act directed toward
the entry of the building, it did not qualify as a violent felony under the ACCA. Fell, 511
F.3d at 1038-44. In Martinez, the court concluded that because a defendant could
commit second-degree attempted burglary without an act directed toward entry of the
building, the “risk of physical injury to another [was] too speculative to satisfy the
residual provision of [the ACCA].” Martinez, 602 F.3d at 1170. Mr. Deiter argues that,
together, these cases stand for the proposition that inchoate crimes, which may
encompass only preparatory conduct, do not qualify as violent felonies under the ACCA.
Doc. 24 at 5-7.

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Following the Eleventh Circuit’s lead in United States v. Colon, 826 F.3d 1301,
1305 (11th Cir. 2016), and relying upon the Supreme Court’s analysis in Gonzales v.
Duenas-Alvarez, 549 U.S. 183 (2007) and the Tenth Circuit’s denial of a certificate of
appealability in United States v. McGuire, No. 16-3282, 2017 WL 429251 (10th Cir. Feb.
1, 2017) (unpublished), the Chief Magistrate Judge distinguished aiding and abetting
from attempt and conspiracy crimes in the context of the ACCA’s force clause. Doc. 23
at 27. This Court, in turn, finds persuasive the rationale set forth in these cases and in
the Chief Magistrate Judge’s PF&RD and concludes that Fell and Martinez do not
control with respect to Mr. Deiter’s aiding and abetting conviction.
Under 18 U.S.C. § 2, “[w]hoever commits an offense against the United States or
aids, abets, counsels, commands, induces, or procures its commission, is punishable as
a principal.” § 2. As such, aiding and abetting under § 2 is “not a separate federal crime,
but rather an alternative charge that permits one to be found guilty as a principal for
aiding or procuring someone else to commit the offense.” Colon, 826 F.3d at 1305.
Indeed, “state and federal criminal law now uniformly treats principals and aiders and
abettors alike.” Gonzales, 549 U.S. at 184. “[T]he acts of the principal become those of
the aider and abettor as a matter of law.” Colon, 826 F.3d at 1305. Therefore, if the
substantive offense satisfies the ACCA’s force clause, so too does the offense of aiding
and abetting that substantive offense. See id. As the Tenth Circuit put it in McGuire:
“That [the defendant] was convicted as an aider and abettor and not as a principal is
irrelevant to our analysis [of whether the crime has as an element the use, attempted
use, or threatened use of physical force].” McGuire, 2017 WL 429251 at *2 n.3.

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Ultimately, if federal bank robbery satisfies the ACCA’s force clause, aiding and abetting
a federal bank robbery does as well. The Court overrules Mr. Deiter’s second objection.
C. Whether federal bank robbery in violation of 18 U.S.C. § 2113(a)
satisfies the ACCA’s force clause.
Mr. Deiter’s final objection is that, contrary to the Chief Magistrate Judge’s
conclusion in her PF&RD, federal bank robbery is not a “violent felony” under the force
clause of the ACCA, for two principal reasons: (1) it does not require proof of an
intentional threat; and (2) it does not require proof of violent force. Doc. 24 at 9-14.
First, in support of his position that federal bank robbery does not require proof of
an intentional threat, Mr. Deiter notes that his bank robbery conviction was required to
meet the elements of § 2113(a) as defined by the Eleventh Circuit, rather than the Tenth
Circuit. Doc. 24 at 10. He explains that the Eleventh Circuit, in United States v. McCree,
225 F. App’x 860, 863 (11th Cir. 2007) (unpublished), held that federal bank robbery is
a general intent crime which requires only a showing that the defendant knew that he
was physically taking the money. Doc. 24 at 10 (quoting McCree, 225 F. App’x at 863).
According to Mr. Deiter, “the conclusion that federal bank robbery requires an
intentional act of intimidation is incongruent with Eleventh Circuit law because federal
bank robbery does not require the intentional use of force, or even implied conduct
coupled with actual knowledge that such conduct will be perceived as intimidating. Id.
But, as it turns out, it is actually Mr. Deiter’s position that is incongruent with Eleventh
Circuit law.
In United States v. Jenkins, 651 F. App’x 920 (11th Cir. June 3, 2016)
(unpublished), the court held that federal bank robbery, even when committed by

7

intimidation, satisfies the career offender guideline’s force clause, which is identical to
the ACCA’s force clause.2 The court in Jenkins reasoned as follows:
“[I]ntimidation” requires the defendant to take actions from which
an ordinary person could reasonably infer a threat of bodily
harm. The threat of bodily harm is sufficient to qualify as the
threatened use of “physical force” or “force capable of causing
physical pain or injury to another person. See Johnson, 559
U.S. at 140 . . . . Thus, a § 2113(a) offense also qualifies as a
crime of violence under U.S.S.G. § 4B1.2(a)’s [force] clause.
Jenkins, 651 F. App’x at 925. As the Chief Magistrate Judge explained in her PF&RD,
although federal bank robbery may not require the specific intent to intimidate, “[t]he
presence or absence of an element of specific intent does not dispositively determine
whether a prior conviction qualifies as a violent felony under the ACCA.” Doc. 23 at 22
(quoting United States v. Ramon Silva, 608 F.3d 663, 673 (10th Cir. 2010) internal
citations omitted)). So long as a crime requires a defendant to intentionally engage in
conduct that objectively constitutes the threatened use of physical force, the crime
satisfies the ACCA’s force clause, even absent the specific intent to communicate such
a threat. See Ramon Silva, 608 F.3d at 673.
The Court concludes that federal bank robbery by intimidation, which under
Eleventh Circuit law occurs when “an ordinary person in the teller’s position reasonably
could infer a threat of bodily harm from the defendant’s acts,” McCree, 225 F. App’x at
863, satisfies the ACCA’s force clause, even if the defendant did not specifically intend
those acts to intimidate.
Second, Mr. Deiter insists that federal bank robbery does not require proof of
violent physical force. Noting that the phrase “physical force” has been defined as
“violent force . . . capable of causing physical pain or injury,” Mr. Deiter insists that a
2

Compare U.S.S.G. § 4B1.2(a)(1) with 18 U.S.C. § 924(e)(2)(B)(ii).

8

robbery statute that requires proof of de minimus or even no physical force cannot be
considered a “violent felony” under the ACCA. Doc. 24 at 12 (quoting Johnson v. United
States, 559 U.S. 133 (2010) (“Johnson I”)).
In support, Mr. Deiter points to a recent Tenth Circuit case, United States v.
Nicholas, No. 16cv3043, 2017 WL 1429788 (10th Cir. Apr. 24, 2017) (unpublished).
There, the court determined that Kansas robbery did not constitute a “violent felony”
under the ACCA, finding that Kansas robbery – that is, “the taking of property from the
person or presence of another by force or by threat of bodily harm to any person” -requires “nothing more than de minimis physical contact or the threat of physical
contact, which is insufficient to satisfy the ACCA’s force requirement.” Id. at *3. In
reaching this conclusion, the Tenth Circuit relied primarily upon State v. McKinney, 961
P.2d 1 (Kan. 1998), where the Kansas Supreme Court found that snatching a purse
from a victim’s arm, without more, satisfied the threat of bodily harm element of the
Kansas robbery statute. Id. at *3-4.
Mr. Deiter maintains that, like Kansas robbery, federal bank robbery “does not
require that any particular quantum of force be used, attempted or threatened.” Doc. 24
at 13. He notes that convictions under § 2113(a) have been upheld even in the absence
of an explicit threat of force. For example, he cites United States v. Slater, 692 F.2d
107, 108 (10th Cir. 1982), where the court upheld a federal bank robbery conviction
after the defendant walked “unhesitatingly” behind a bank counter and began removing
cash from a teller’s drawer, and United States v. Kelley, 412 F.3d 1240, 1244-45 (11th
Cir. 2005), where the court upheld a federal bank robbery conviction after the defendant
and an accomplice jumped on top of the teller counter and opened an unattended,

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unlocked cash drawer. In short, Mr. Deiter suggests that because federal bank robbery
can be committed without an explicit threat to use violent, physical force, it suffers the
same fate under the ACCA as Kansas robbery did in Nicholas.
In this Court’s view, however, Kansas robbery is distinguishable from the offense
of federal bank robbery, though the language of the statutes may be similar in some
respects, as it includes an additional and significant statutory element: that the money
or property taken belong to or is in the control or possession of a banking institution.
See 18 U.S.C. § 2113(a). Banking institutions, in contrast to private individuals, are
known to employ security guards, surveillance, and substantial protections to thwart
would-be robbers. And while the modified-categorical approach counsels against
consideration of the underlying facts in a particular case, it does not necessitate
dispensing with common sense or context.
In the context of a bank robbery, it may actually take very little to communicate a
threat of violent, even deadly, force to a reasonable bank teller. Even a statement such
as, “You better hand over the money!” communicates an “or else” component when it is
delivered to a bank teller absent any conduct or language to allay her fears that she
may be subject to physical force. Placing bank employees in fear of the use of violent or
deadly force is, uniquely, the operative element that facilitates the taking of a bank’s
money. See United States v. Slater, 692 F.2d 107 (10th Cir. 1982) (holding that a jury
could conclude that the elements of § 2113(a) were met, even though the defendant
accomplished the taking without a weapon or an explicit threat of the use of physical
force, given that “a weapon and a willingness to use it are not uncommon” in the context
of a bank robbery).

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The Court is simply unwilling to agree with Mr. Deiter’s suggestion that the
sometimes-implicit nature of threats made during a bank robbery dictates that § 2113(a)
therefore lacks an element of the use or threatened use of violent, physical force.
Instead, the Court finds persuasive the rationale of the District of New Hampshire in
United States v. Kucinski, No. 16cv201 PB, 2016 WL 4444736 (D.N.H. Aug. 23, 2016):
§ 2113(a) does not require “an explicit threat of force . . . to establish
intimidation.” A demand note can therefore constitute intimidation,
because the note is an implied threat to use force if the teller refuses the
robber’s demands. Indeed, the threat of physical force is what makes the
demand effective – the teller gives the robber money “because she
reasonably fear[s] that the robber would use force if [she] did not satisfy
his demands.” . . . The same is true of the ACCA. Nothing in the ACCA’s
text requires an explicit threat of physical force.
Id. at *4 (internal citations and parentheticals omitted). The Court agrees with the Chief
Magistrate Judge that federal bank robbery, even by intimidation, has as an element the
threatened use of force of the type contemplated in Johnson I. See United States v.
Enoch, No. 15cr66, 2015 WL 6407763, at *3 (N.D. Ill. Oct. 21, 2015) (“Because
intimidation requires a threat, albeit in some cases an implied threat, of violent physical
force, robbery [under § 2113(a)] is a crime of violence within the meaning of section
924(c) even though it can be committed by intimidation rather than actual violence.”).
Mr. Deiter makes a related argument that “simply placing a person in fear of
bodily harm does not necessarily require the use of violent physical force.” Doc. 24 at
14 (emphasis in original). He suggests that a person could conceivably commit federal
bank robbery through intimidation by threatening to poison a teller, which, even if it put
the teller in fear of bodily harm, would not constitute the threatened use of violent,

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physical force. Id. In addition to being more theoretical than realistic,3 Mr. Deiter’s
argument fails for additional reasons.
In Johnson I, the Supreme Court examined the phrase “physical force” as used in
the ACCA’s force clause. While the Court determined that “physical force” meant
“violent force” or “force capable of causing physical pain or injury to another person,” it
also separately considered the meaning of each of the terms, “physical” and “force.”
Johnson, 559 U.S. at 134. It defined “physical” as a “force exerted by and through
concrete bodies – distinguishing physical force from, for example, intellectual force or
emotional force.” Id. at 138; United States v. Harris, 844 F.3d 1260, 1264 (10th Cir.
2017) (quoting Johnson I). It defined “force” in a number of ways, including “[p]ower,
violence, compulsion, or constraint exerted upon a person.” Johnson, 559 U.S. at 139.
In the Court’s view, these definitions, particularly the definition of “physical,” suggest
that while mere offensive touching will not suffice under the ACCA’s definition of
“physical force,” the Supreme Court has not necessarily foreclosed the inclusion of
offenses that involve the use of “physical force” through indirect means.
Later, in United States v. Castleman, 134 S. Ct. 1405 (2014), the Supreme Court
again examined the phrase “physical force,” this time in the context of 18 U.S.C.
§ 921(a)(33)(A). Id. at 1414. The Court rejected the notion that “deceiving the victim into
drinking a poisoned beverage” did not constitute “physical force.” Id. at 1414-15. It
explained that “[t]he use of force . . . is not the act of sprinkling the poison; it is the act of
employing poison knowingly as a device to cause physical harm. That the harm occurs
indirectly, rather than directly (as with a kick or punch), does not matter.” Id. at 1415.
3

When construing the minimum culpable conduct for an offense, such conduct only includes
that in which there is a “realistic probability, not a theoretical possibility” that the statute would
apply. United States v. Harris, 844 F.3d 1260, 1264 (2017).

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The Court posited that a contrary conclusion might permit defendants to argue “that
pulling the trigger on a gun is not a ‘use of force’ because it is the bullet, not the trigger,
that actually strikes the victim.” Id.
While Castleman dealt with a different statutory provision,4 and even
distinguished the meaning of “physical force” there from the meaning of “physical force”
under the ACCA, see id. at 1409-13, courts have nevertheless drawn upon Castleman’s
rationale and concluded that the differences between the statute at issue there and the
ACCA are not material on the issue of what it means to “use” physical force. See, e.g.,
Kucinski, 2016 WL 4444736, at *4–5 (concluding that the logic used in Castleman to
define the “use of physical force” extended to the ACCA’s force clause); see also United
States v. Williams, No. 15cr0069 JDL, 2016 WL 1555696, at *8 n.13 (D. Me. Apr. 15,
2016); United States v. Bell, No. 15cr0258 WHO, 2016 WL 344749, at *8 (N.D. Cal.
Jan. 28, 2016). This Court agrees that the Supreme Court’s analysis of what it means to
use physical force in Castleman is helpful even in the ACCA context.
Contrary to Mr. Deiter’s position, the Court finds that Johnson I and Castleman,
taken together, instruct that a threat to use indirect physical force during a bank robbery,
4

In Castleman, the issue was whether a particular offense fell within 18 U.S.C.
§ 922(g)(9), which prohibits a person who has been convicted of a “misdemeanor crime of
domestic violence” from possessing a firearm or ammunition. See § 922(g)(9). With exceptions
not applicable, a “misdemeanor crime of domestic violence” is defined as an offense that (1) is a
misdemeanor under Federal, State, or Tribal law, and (2) which “has, as an element, the use or
attempted use of physical force, or the threatened use of a deadly weapon, committed by a
current or former spouse, parent, or guardian of a victim . . .” § 921(a)(33)(A). The defendant in
Castleman argued that his predicate offense did not have as an element the “use of physical
force.” Castleman, 134 S. Ct. at 1409. The district court agreed with him based upon the
theory that one could commit the offense at issue by causing bodily injury without “violent
contact,” for example by poisoning their victim. Id. The Supreme Court ultimately disagreed with
the defendant, however, concluding that in contrast to the ACCA, Congress incorporated the
common-law meaning of “force” – that is, even offensive touching – into § 921(a)’s definition of
a “misdemeanor crime of domestic violence.” Id. at 1410. The Court explained that “‘[d]omestic
violence’ is not merely a type of ‘violence’; it is a term of art encompassing acts that one might
not characterize as ‘violent’ in a nondomestic context.” Id. at 1411.

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such as a threat to use poison, still qualifies as a threat to use violent, physical force
under the ACCA. After all, the administration of poison would, no doubt, have a
harmful, violent effect on the body of the one who ingests it. See United States v. Pena,
161 F. Supp. 3d 268, 282 (S.D.N.Y. 2016) (reasoning, in the context of § 924(c), that
poisoning a person would constitute the use of Johnson I physical force, as “poison can
certainly be a strong enough force to cause physical pain or injury to another person”).
Furthermore, given the Tenth Circuit’s recent acknowledgement that even a “slap in the
face,” may rise to the level of violent, physical force, see Harris, 844 F.3d at 1265, it
would be incongruous to hold that the administration of poison would not constitute
Johnson I physical force.
For all of these reasons, and because it appears that the Tenth Circuit has
adopted the majority view that federal bank robbery has as an element the use,
attempted use, or threatened use of physical force, see McGuire, 2017 WL 429251 at
*2-3,5 the Court overrules Mr. Deiter’s final objection.
IT IS THEREFORE ORDERED that Mr. Deiter’s Objections to the Proposed
Findings and Recommended Disposition (Doc. 24) are hereby OVERRULED;
IT IS FURTHER ORDERED that the Chief Magistrate Judge’s Proposed Findings
and Recommended Disposition (Doc. 23) is hereby ADOPTED;
IT IS FURTHER ORDERED that Mr. Deiter’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 3) is hereby DENIED, and his
claims are dismissed with prejudice.

5

The Tenth Circuit, in McGuire, concluded that no reasonable jurist would debate a district court
determination that federal bank robbery satisfies the force clause of the career offender
guideline. McGuire, 2017 WL 429251, at *2-3.

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

MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE

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