Sandoval v. United States of America
Filing
18
MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker denying and dismissing 13 MOTION to Amend/Correct 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) . (bap)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs.
CV. No. 16-00624 JAP/LF
FERNANDEZ SANDOVAL,
Defendant.
MEMORANDUM OPINION AND ORDER
On June 15, 2020, Defendant filed FERNANDEZ SANDOVAL’S AMENDED MOTION
TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (CV Doc. 13) (Motion). 1 In his
Motion, Defendant argues that 300 months of the 370 months sentence he received is
unconstitutional. The Motion is fully briefed. 2 After considering the briefs, the Court will deny
Defendant’s Motion.
PROCEDURAL BACKGROUND
On August 14, 1996, a jury found Defendant guilty 3 for committing on separate days two
armed bank robberies in violation of 18 U.S.C. §§ 2113(a) and for using or carrying firearms in
the commission of those crimes in violation of 18 U.S.C. § 924 (Counts 2 and 4). Defendant, who
had prior felony convictions, was also charged with being a felon in possession of a firearm, a
separate crime committed in addition to the two charged robberies (Count 6). 4
Defendant’s criminal case is docketed in 1:95-cr-00636-JAP-1. Citations to the civil docket will be marked “CV
Doc.” and citations to the criminal docket will be marked “CR Doc.”
2
See THE UNITED STATES’ RESPONSE IN OPPOSITION TO FERNANDEZ SANDOVAL’S AMENDED
MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (CV Doc. 16) (Response), and
FERNANDEZ SANDOVAL’S REPLY IN SUPPORT OF HIS AMENDED MOTION TO CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255 (CV Doc. 17) (Reply).
3
See VERDICT (CR Doc. 87).
4
The six-count indictment included a co-defendant who was individually charged on one of the counts.
1
1
On January 2, 1997 (Doc. 107) the Court sentenced Defendant to a total term of
imprisonment of 370 months: 70 months each for counts 1, 3, and 6, to be served concurrently; 60
months for Count 2, and 240 months for count 4, both of which statutorily must be served
consecutive to any other sentence. Defendant unsuccessfully sought to reverse his conviction. 5
On June 20, 2016, Defendant filed with a motion with the Tenth Circuit Court of Appeals 6
seeking permission to file a second or successive § 2255 petition, asserting that Defendant’s
enhancement under § 924(c) for using and possessing a firearm in the commission of a crime of
violence violated his constitutional due process rights. Id. at 5. The Tenth Circuit abated the matter
and it was stayed in this Court until December 5, 2019 when the Tenth Circuit lifted the abatement
and authorized Defendant to file a second petition. 7
LEGAL STANDARD
Before a district court may proceed to an examination of the merits of a second or
successive § 2255 petition, Defendant must pass through “two gates.” See United States v.
Washington, 890 F.3d 891, 894 (10th Cir. 2018). First, Defendant must obtain authorization from
the Tenth Circuit to file a successive petition by making a prima facie showing that his motion
relies on “a new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable.” Id. at 895. Then, Defendant may advance to the
district court where, he “must ‘back up the prima facie showing … with actual evidence to show
he can meet this standard.’” Id. (quoting Case v. Hatch, 731 F.3d 1015, 1028 (10th Cir. 2013)). If
5
Defendant’s attempts to reverse his conviction included a petition under 29 U.S.C. § 2255, see Doc. 112, which
argued that he was denied effective assistance of counsel. The Court denied the petition on April 2, 2001. (CR Doc.
144).
6
See Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (CV
Doc. 145).
7
See Order (Doc. 156).
2
Defendant fails to meet the requirements of the second prong, this Court “must dismiss the motion
without reaching the merits of [Defendant’s] claim.” Washington, 890 F.3d at 895.
ANALYSIS
Defendant’s Petition rests on an allegation that 300 months of his 370 months sentence is
unlawful because it arises from an unconstitutional statutory provision found in 18 U.S.C. §
924(c)(3). This statute criminalizes using or carrying a firearm “during and in relation to any crime
of violence or drug trafficking crime.” Defined in § 924(c)(3), a “crime of violence” is a “felony
and –(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.” Subsection A is commonly called the “elements clause,” and subsection B is known as
the “residual clause.” See United States v. Davis, 139 S. Ct. 2319, 2324 (2019).
In United States v. Davis, the Supreme Court held that the residual clause in § 924(c)(3)(B)
is unconstitutionally vague under the Fifth Amendment and the separation of powers principle,
because it does not give defendants “fair notice of what the law demands of them.” Id. at 2335. In
contrast, the elements clause does not suffer from the same infirmities because it clearly
criminalizes “the use, attempted use, or threatened use of force.” United States v. Bowen, 936 F.3d
1091, 1100 (10th Cir. 2019). In Bowen, the Tenth Circuit held that Davis’s new rule is substantive
and therefore retroactively applicable to cases on collateral review. Id. Defendant now seeks
review of the sentence imposed for his § 924(c) conviction, contending that the predicate offenses,
two counts under § 2113(a) and (d) of armed robbery, can only be crimes of violence under the
residual clause.
Without considering the merits of Defendant’s claim, the Tenth Circuit concluded that the
holdings of Davis and Bowen as applied to Defendant’s § 924(c)(3) conviction gave Defendant a
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legal basis to argue his claim and so authorized Defendant’s petition. Now, the question before
this Court is whether Defendant’s claim is viable. To pass the second gate, Defendant must show
by a preponderance of the evidence “that it is more likely than not” that his conviction for armed
robbery under § 2113(a) and/or (d) were “crimes of violence” under the residual clause. See
Washington, 890 F.3d at 896. If Defendant fails to do so, then his petition must be dismissed
without further consideration.
When examining whether a predicate statute falls within the element clause or the residual
clause, courts use a categorical approach that examines only the statutory elements of a crime.
“‘Elements’ are the ‘constituent parts’ of a crime’s legal definition—the things the ‘prosecution
must prove to sustain a conviction.’” Mathis v. United States, 136 S. Ct. 2243, 2248 (2016)
(quoting Black’s Law Dictionary 634 (10th ed. 2014)). To qualify as a crime of violence under the
elements clause, Defendant’s predicate crime must have as a necessary element one of the
following: “[1] the use, [2] attempted use, or [3] threatened use of physical force against the person
or property of another” (force component(s)). § 924(c)(3)(A). If Defendant’s predicate crime
includes one or more force components, but the crime may be committed without proving a force
component, then the predicate crime does not fall within the elements clause and a conviction for
§ 924(c)(3) was premised on the residual clause.
Defendant’s § 924(c)(3) conviction is predicated on use of a firearm in the commission of
armed robbery in violation of § 2113(a) and (d). Because Defendant’s § 924(c)(3) conviction is
not explicitly tied to either 2113(a) or (d), if either offense is categorically a crime of violence, 8
then Defendant’s conviction stands. Defendant contends that neither conviction is categorically a
8
Subsection (a) defines robbery and subjection (d) prohibits use of a dangerous weapon in the commission of a
robbery.
4
crime of violence. Alternatively, Defendant asserts that when he committed his offense in 1995,
existing precedent means that the Court could only have sentenced him under the residual clause.
1. Defendant’s conviction under § 2113(a)
Defendant claims that his conviction under § 2113(a) 9 cannot be a crime of violence under
the elements clause because § 2113(a) may be violated by different factual means, some of which
do not have a force component. Mot. (CV Doc. 13) at 6. The Government disagrees, declaring that
§ 2113(a) is a divisible statute that describes two different offenses: one with a force component
and one without. The Government has the better argument.
Defendant correctly observes that § 2113(a) criminalizes both unlawful entry and robbery.
See Prince v. United States 352 U.S. 322, 328 (1957) (explaining the history behind the inclusion
of the unlawful entry paragraph). Because as defined in § 2113(a), unlawful entry may be
committed without a force component, Defendant maintains that the inclusion of unlawful entry
in the language of § 2113(a) denotes that robbery, too, cannot fall within the elements clause. But
the fact that § 2113(a) criminalizes both unlawful entry and armed robbery does not make them
one offense.
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While there have been some changes to § 2113 since 1995, subsection (a) has remained the same and states:
Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or
presence of another, or obtains or attempts to obtain by extortion any property or money or any other
thing of value belonging to, or in the care, custody, control, management, or possession of, any
bank, credit union, or any savings and loan association; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or
any building used in whole or in part as a bank, credit union, or as a savings and loan association,
with intent to commit in such bank, credit union, or in such savings and loan association, or building,
or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan
association and in violation of any statute of the United States, or any larceny—
Shall be fined under this title or imprisoned not more than twenty years or both.
The first paragraph refers to robbery, while the second refers to unlawful entry. See Prince, 352 U.S. at 328. While
the Appellant calls the second paragraph the larceny paragraph, other courts refer to subparagraph (b) as the larceny
provision. To avoid confusion, the Court will use the term “unlawful entry.”
5
When a statute describes two different crimes, then that statute may be divisible. See
Descamps v. United States, 570 U.S. 254, 257 (2013). And in several unpublished cases, the Tenth
Circuit has found that § 2113(a) is a divisible statute that describes the separate offenses of
unlawful entry and robbery. See United States v. Harden, 787 F. App’x 547 (10th Cir. 2019)
(“However, § 2113(a) is divisible, including both bank robbery by force, violence, or intimidation
and the separate offense of entering or attempting to enter a bank building with intent to commit a
felony or larceny.”); see also United States v. Rinker, 746 F. App’x 769, 772 (10th Cir. 2018)
(same).
To rebut this authority, Defendant states that in Prince, the Supreme Court held that
“§ 2113(a) does not define two separate crimes with separate sets of elements but only a ‘single
crime’ with a single set of elements.” Mot. (Doc. 13) at 8. The Government disputes Defendant’s
characterization of the Prince holding, arguing that Prince does not hold that the two paragraphs
in § 2113(a) had merged, but rather, that the punishment for the two separate offenses had joined.
The Court agrees.
In Prince, the defendant was convicted under both paragraphs of § 2113(a) and was given
consecutive sentences. Id. at 323. The issue before the Court was whether the defendant could be
convicted of both the intent to commit robbery and the completed act of robbery. After finding
that § 2113 “creates and defines several crimes incidental to and related to thefts from banks,”
Prince, 352 U.S. at 323, the Court held that the intent to commit a robbery and/or unlawful entry
together with an actual completed act of robbery “merged” the punishments, so that a defendant
could not be sentenced for two separate crimes. Id. at 328-29; see also United States v. Gaddis,
624 U.S. 544, 547 (1976) (citing Prince for its holding that in § 2113, some convictions for
sentences merged) (further citation omitted); see also Purdom v. United States, 249 F.2d 822, 82627 (explaining merger of sentences doctrine). As later explained by the Fifth Circuit, Prince
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concluded that “Congress creates different crimes aimed at successive stages of a single criminal
undertaking, the defendant can properly be charged and tried for multiple offenses, but may be
punished only for the commission of one offense.” United States v. Vasquez, 867 F.2d 872, 875
(5th Cir. 1989) (citation omitted). In summation, Prince’s recognition that § 2113 delineates more
than one offense does not support Defendant’s argument but contradicts it. See United States v.
Butler, 949 F.3d 230, 236 (5th Cir. 2020), cert denied, 141 S. Ct. 380 (2020) (“If anything, Prince
supports the view that section 2113(a) establishes separate crimes”); United States v. Loniello, 610
F.3d 488, 496 (7th Cir. 2010) (“[T]he Prince line of decisions requires merger of sentences, not of
offenses.”).
Next Defendant argues that because the Supreme Court had not yet explained the modified
categorical approach, when sentencing him, the Court could only have relied on the residual clause.
When a statute is divisible, then a Court may apply a modified categorical approach to determine
which part of the statute supported the conviction. See Mathis, 136 S. Ct. at 2249. The modified
categorical approach permits a court to look at “a limited class of documents (for example, the
indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what
elements, a defendant was convicted of.” Id. (citing Taylor 495 U.S. at 602). Defendant correctly
observes that the Supreme Court decided Taylor after Defendant’s sentencing. So, Defendant
concludes, while the Court would have known that Defendant had been convicted under 2113(a),
the Court would not have applied the modified categorical approach and consequently could not
have categorically known whether his conviction was under the robbery paragraph or the unlawful
entry paragraph. The Tenth Circuit has rejected this argument. Washington, 890 F.3d at 896 (10th
Cir. 2018); see also Rivers v. Roadway Express Inc., 511 U.S. 298, 312-13 (1994) (“A judicial
construction of a statute is an authoritative statement of what the statute meant before as well as
after the decision of the case giving rise to that construction”). It is not the Government’s burden
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to show that a court sentenced a defendant under the elements clause, it is defendant’s burden to
show that it “more likely than not” that a sentencing court relied on the residual clause.
The next question for the Court is whether robbery has a force component under the
elements clause. “[A]n offense will qualify as a crime of violence under § 924(c)(3)(A) if it has as
an element the use, attempted use, or threatened use of physical force (as opposed to intellectual
or emotional force), applied directly or indirectly, that is capable of cause physical pain or injury
to the person or property of another.” United States v. Muskett, 970 F.3d 1233, 1240-41 (10th Cir.
2020) (internal quotes omitted). “In deciding whether a prior conviction constitutes a ‘violent
felony’ under the elements clause, ‘we apply the categorical approach, focusing on the elements
of the crime of conviction, not the underlying facts.’” United States v. Deiter, 890 F.3d 1203, 1211
(10th Cir. 2018) (quoting United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017)).
In United States v. McCranie, 889 F.3d 677, 681 (10th Cir. 2018) the Tenth Circuit
squarely addressed whether § 2113(a) constituted a crime of violence under the elements clause in
Sentencing Guideline § 4B1.2(a)(1) and concluded that it “categorically” was, because it involved,
at a minimum, the threatened use of force. Id. at 680-81. Although the definition of crime of
violence in § 4B1.2(a)(1) differs slightly from that found in § 924(c)(1)(B)—the former describes
§ 4B1.1 “physical force against the person of another” while the latter describes the physical force
“against the person or property of another”—the difference is analytically insignificant. See also
Deiter, 890 F.3d at 1213 (finding that defendant was liable for a crime of violence under § 2113(a)
because under 18 U.S.C. § 2, aiding and abetting, a defendant would be as liable as he would for
the completed crime). Meaningfully, in several unpublished cases, the Tenth Circuit applied
McCranie to hold that federal bank robbery is a crime of violence under § 924(c)(A). See, e.g.,
United States v. Higley, 726 F. App’x 715, 717 (10th Cir. 2018) (“[W]e hold that [defendant’s]
conviction for armed bank robbery nonetheless constitutes a “crime of violence” under the
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alternate, elements based definition in § 924(c)(3)(A)); Rinker, 746 F. App’x. at 769 (10th Cir.
2018).
Notably, even at the time that Defendant was sentenced, courts consistently found that
§ 2113(a) robbery had a force component. In United States v. Lewis, the Tenth Circuit held that
the § 2113(a) offense was “unambiguously dangerous” and criminalized entering a bank “with the
intention of taking money by intimidating employees of the bank.” 628 F.2d 1276, 1279 (10th Cir.
1980); see also United States v. Brittain, 41 F.3d 1409, 1415 (10th Cir. 1994), abrogated on other
grounds by Carter v. United States, 530 U.S. 255 (2000) (describing the crime in § 2113(a) and
(d) the “resort to force and violence, or intimidation, in the presence of another person to
accomplish his purposes” (citing United States v. DeLeo, 422 F.2d 487, 491 (1st Cir. 1970) (further
citation omitted))). In 1997, courts construed § 2113(a) to require, at a minimum, intimidation or
the “threatened use of physical force” which falls within the elements clause.
B.
Defendant’s conviction under 2113(d)
Section 2113(d) creates a “separate and greater punishment for bank robberies
accomplished through ‘use of a dangerous weapon or device.’” Apprendi v. New Jersey, 530 U.S.
466, 487 (2000) (further citation omitted). Even if there was any ambiguity as to whether § 2113(a)
falls within the elements clause, Defendant’s conviction under § 2113(d) undoubtably does.
Section 2113(d) states:
Whoever, in committing, or in attempt to commit, any offense defined in
subsections (a) and (b) of this section, assaults any person or puts in jeopardy the
life of any person by the use of a dangerous weapon or device, shall be fined under
this title or imprisoned not more than twenty-five years, or both. 10
Defendant contends that 2113(d) cannot be a crime of violence under the elements clause because
“the minimum force required for an assault by the use of a dangerous weapon or device under
10
This is the version in effect in 1995.
9
section 2113(d) can be, for example, the holding of a gun pointed downwards during a robbery,
and not pointed towards any of the bank employees or customers.” Mot. at 6 (citing United States
v. Martinez-Jiminez, 864 F.2d 664, 667 (9th Cir. 1989)). The Government counters that even the
use of a toy gun involves the “threatened use of force.” Tenth Circuit precedent supports the
Government’s argument. Resp. (Doc. 16) at 14.
In the 1993 case, United States v. Coleman, the Tenth Circuit examined the question of
what constitutes use of a “dangerous weapon” in § 2113(d). 9 F.3d 1480 (10th Cir. 1993). In
Coleman, while robbing a bank, the defendant wrestled a security guard for a gun, but never gained
control over it. Subsequently, the defendant was convicted for armed robbery under § 2113(d).
Defendant appealed his conviction, arguing that he had not met § 2113(d)’s requirements since he
neither possessed nor used the gun. The Tenth Circuit affirmed his conviction.
The Court held that the “use of a dangerous weapon or device” requires that “[a] the
defendant created an apparently dangerous situation, (b) intended to intimidate his victim to a
degree greater than mere use of language, (c) which does, in fact, place his victim in reasonable
expectation of death or serious bodily injury.” Id. at 1484 (quoting United States v. Spedalieri, 910
F.2d 7070, 710 (10th Cir. 1990) (further citations omitted)) The Court clarified that “use” and
“something less than ‘use’ turns on whether the victims reasonably expected that the assailant
could use the weapon to inflict upon them death or serious bodily injury, not on the assailant’s
degree of control of the weapon.” Coleman, 9 F.3d at 1484; see also McLaughlin v. United States
476 U.S. 16 (1986) (use of a gun, even an unloaded one is always a dangerous weapon because it
will “instill fear in the average citizen” and “creates an immediate danger that a violent response
will ensue.”); United States v. Odom, 329 F.3d 1032, 1036 (9th Cir. 2003) (the “use” of a gun
under § 2113(d) also requires some type of “active employment.”). Because it is the threat of the
gun that creates “an immediate violent response” not a defendant’s degree of control over a gun,
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an “‘armed’ robbery of a bank does not require that the assailant have a precise, measurable amount
of physical dominion or control over a weapon.” Coleman, 9 F.3d at 1484. Notably, Coleman was
decided just a few years prior to the conduct leading to Defendant’s conviction.
While Coleman did not directly place § 2113(d) as a crime of violence within the elements
clause found in § 924(c)(1)(A), the Tenth Circuit’s definition of “use of a dangerous weapon or
device” as used in § 2113(a) does. To violate § 2113(d), a defendant must intend to intimidate his
victim to a “reasonable expectation of death or serious bodily injury.” Therefore, at a minimum,
§ 2113(d) requires “the threatened use of force.” See United States v. Crouthers, 669 F.2d 635,
640 n.1 (10th Cir. 1982) (“To put in jeopardy the life of a person by the use of a dangerous weapon
or device means, then, to expose such person to a risk of death or to the fear of death by the use of
such dangerous weapon or device”)
The Court concludes that robbery under § 2113(a) and (d) are categorically crimes of
violence under the elements clause. Because in 1997, existing precedent established that § 2113(a)
and (d) required, at a minimum, the “threatened use of force,” Defendant had fair notice that his
conduct was criminal. Consequently, Defendant has not met his burden showing that it is more
likely than not that his sentence under § 924(c)(1) violated his constitutional rights.
It is ordered that Defendant’s § 2255 petition is dismissed.
SENIOR UNITED STATES DISTRICT JUDGE
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