Gutierrez v. United States of America
Filing
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MEMORANDUM OPINION AND ORDER OF DISMISSAL of Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. §2255 1 with prejudice. A certificate of appealability is denied. Signed by U.S. District Judge Lawrence L. Piersol on 7/27/16. (DJP)
FILED
UNITED STATES DISTRICT COURT
JUL 21 2016
DISTRICT OF SOUTH DAKOTA
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WESTERN DIVISION
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CIV. 16-5055
EUGENE GUTIERREZ,
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CR 00-50081-04
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Movant,
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* MEMORANDUM OPINION AND
ORDER OF DISMISSAL
vs.
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UNITED STATES OF AMERICA,
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Respondent.
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Eugene Gutierrez filed a pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant
to 28 U.S.C. § 2255, claiming that his 2001 conviction on count 2 of the indictment is invalid in light
of Johnson v. United States, 135 S. Ct. 2551 (2015). In his prose Memorandum of Law, Gutierrez
clearly presents the arguments in support of his motion. (Doc. 2.) The Federal Public Defender
submitted a Notice oflntent Not To Supplement Pro Se Filing. 1 (Doc. 6.)
Promptly after the filing of a § 2255 motion, the Court must undertake a preliminary review
of the motion to determine whether it plainly appears from the motion, the attached exhibits and the
record of prior proceedings that the movant is not entitled to relief in the district court. See Rule 4,
Rules Governing§ 2255 Cases. If so, the Court must dismiss the motion. Id. As discussed below,
it conclusively appears from Gutierrez's filings and the record of the criminal case that he is not
entitled to relief on his claims.
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0n November 19, 2015, Chief Judge Jeffrey L. Viken issued a Standing Order appointing
the Offices of the Federal Public Defender for the Districts of South Dakota and North Dakota to
represent all defendants in criminal cases in those districts who may be eligible to seek a reduced or
modified sentence based upon the decision in Johnson and subsequent court decisions.
BACKGROUND
On October 22, 2001, Gutierrez pleaded guilty to one count (count 1) of armed bank robbery
under 18 U.S.C. §§ 2113(a) and 2113(d), and a second count (count 2) of use of a firearm during the
commission of a crime of violence under 18 U.S.C. § 924(c). In the Statement of Factual Basis
signed by Gutierrez on October 16, 2001, he agreed, in part:
On December 9, 1998, in the early morning, Eugene Gutierrez entered the
then, Norwest Bank of Black Hawk, South Dakota. He was accompanied by
Lafayette Washington, Travon Clardy and Jimmy Prince. The four entered the bank
and proceeded to forcibly rob it of United States currency.
****
In the course of the robbery, each of the bank occupants were physically
forced to lie upon the floor and each had their hands tied together using the ties
purchased at the hardware store. Washington and Prince jumped over the teller's
counter and proceeded to remove United States currency from tellers' drawers and
bank vaults. In the course of the robbery, Eugene Gutierrez was armed with the
MAC .10 or MAC .11 firearm. The firearm was owned by Clardy but used that day
by Gutierrez. In the course of the robbery, one or more of the above-identified four
individuals forcibly took United States currency from one or more bank tellers by
force. A witness-teller reports being struck in the head at least once by one of the
robbers. Although Gutierrez did not directly observe such incident he does not
dispute the accuracy of the witness-teller when she claims to have been struck.
(Doc. 178.) On January 7, 2002, Gutierrez was sentenced to 120 months' imprisonment on count
1 and a mandatory 7-year consecutive term of imprisonment on count 2 for brandishing a firearm
during a crime of violence. See 18 U.S.C. § 924(c)(l)(A) (providing for a separate consecutive
sentence of 7 years in addition to the punishment for the crime of violence if a firearm is
brandished). Gutierrez did not appeal the sentence.
On June 23, 2016, Gutierrez filed the instant motion pursuant to 28 U.S.C. § 2255(f)(3),
which provides that the one-year limitation period to file motions may begin from "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."
Specifically, Gutierrez argues that the holding in Johnson v. United States, 135 S. Ct. 2551 (2015),
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recognized a new right that is retroactively applicable on collateral review, and that this right
invalidates his conviction under 18 U.S.C. § 924(c) on count 2.
DISCUSSION
In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal
Act (ACCA) is unconstitutionally vague because it creates uncertainty about how to evaluate the
risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 135 S.Ct.
at 2557-58. The ACCA, 18 U.S.C. § 924(e), defines the term "violent felony" as any crime
punishable by a term of imprisonment exceeding one year that: (1) has as an element the use,
attempted use, or threatened use of physical force against the person of another; or (2) is burglary,
arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious
potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The first prong of this
definition is sometimes referred to as the "elements clause," while the second prong contains the
"enumerated crimes" and, finally, what is commonly called the "residual clause" (the "ACCA
residual clause"). The ACCA residual clause covers "conduct that presents a serious potential risk
of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court in Johnson made
clear that its holding that the ACCA residual clause is void did not call into question the validity of
the elements clause or the enumerated crimes. 135 S. Ct. at 2563.
Post-Johnson, federal prisoners who were sentenced in reliance on the ACCA's now-void
residual clause in 18 U.S.C. § 924(e) are entitled to file a § 2255 motion in the district court because
Johnson announced a new rule of constitutional law made retroactively applicable to ACCA cases
on collateral review. Welch v. United States, 136 S.Ct. 1257, 1264-65 (2016).
Gutierrez, however, was not sentenced under the ACCA found in 18 U.S.C. § 924(e).
Rather, as explained above, Gutierrez was convicted of the use of a firearm in furtherance of a crime
of violence in violation of 18 U.S.C. § 924(c). Section 924(c) provides, in relevant part:
[A ]ny person who, during and in relation to any crime of violence or drug trafficking
crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses
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a firearm, shall, in addition to the punishment provided for such crime of violence
or drug trafficking crime (ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less
than 7 years ....
18 U.S.C. § 924(c)(l)(A). Under§ 924(c), "crime of violence" is defined as an offense that 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.
18 U.S.C. §§ 924(c)(3)(A) and (B). The former clause is referred to herein as the "elements" clause
and the latter clause as the"§ 924(c)(3)(B) residual clause." The language of§ 924(c)(3)(B) is
similar, but not identical, to the language of the ACCA residual clause invalidated by the Supreme
Court in Johnson.
1. Gutierrez's Residual Clause Argument
Gutierrez asserts that the§ 924(c)(3)(B) residual clause is unconstitutionally vague in light
of Johnson. Johnson said nothing about the validity of the definition of a crime of violence in the
§ 924(c)(3)(B) residual clause, and the Eighth Circuit has not decided if Johnson applies to
§ 924(c)(3)(B). Some district courts have found that the similar language in§ 924(c)(3)(B) is void
for vagueness in light ofJohnson. See, e.g., United States v. Smith, 2016 WL 2901661 (D. Nev. May
18, 2016). But even if this Court were to conclude both that Johnson applies retroactively to
§ 924(c)(3)(B), and that the § 924(c)(3)(B) residual clause is unconstitutional, it would not help
Gutierrez because, as explained below, a conviction for bank robbery in violation of 18 U.S.C.
§§ 2113(a) and (d) clearly meets the requirement for a crime of violence under the § 924(c)(3)(A)
elements clause, which requires the underlying offense to include as an element, "the use, attempted
use, or threatened use of physical force against the person or property of another."
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2. Gutierrez's Elements Clause Argument
Relying principally on Johnson v. United States, 559 U.S. 133 (2010), and United States v.
Torres-Miguel, 701F.3d165 (4th Cir. 2012), Gutierrez argues that bank robbery under 18 U.S.C.
§§ 2113(a) and 2113(d) does not qualify as a crime of violence under the "categorical approach."
(Doc. 2 at p. 5.) In Johnson, the Supreme Court interpreted the phrase "physical force" in the Armed
Career Criminal Act's "force clause" to mean violent force. 559 U.S. at 140. The court concluded
that "in the context of a statutory definition of 'violent felony,' the phrase 'physical force' means
violent force-that is, force capable of causing physical pain or injury to another person." Id. In
Torres-Miguel, the Fourth Circuit reviewed a district court's finding that "the California threat
conviction categorically constituted a crime of violence justifying a sentencing enhancement under
the United States Sentencing Guidelines .... See U.S. Guidelines Manual§ 2Ll .2(b )(1 )(A)(ii) (2011)
[(providing for increased guidelines for previously deported person with certain prior felony
convictions unlawfully reentering the United States)]." Id. at 166. The court concluded that "[a]n
offense that results in physical injury, but does not involve the use or threatened use of force, simply
does not meet the Guidelines definition of a crime of violence." Id. at 168. Gutierrez asserts that
under the categorical approach, "[i]f the most innocent conduct penalized by a statute does not
constitute a 'crime of violence' then the statute categorically fails to qualify as a 'crime of
violence."' (Doc.2 at p.5.) Gutierrez argues that bank robbery as defined in 18 U.S.C. §§ 2113(a)
and 2113(d) does not meet the requirement of force capable of causing physical pain or injury to
another person "because it can be accomplished by putting someone in fear of future injury to his
person or his property.... " (Doc. 2 at 6.)
Gutierrez's arguments fail for a number ofreasons. First, he is incorrect that bank robbery
under 18 U.S.C. §§ 2113(a) and 2113(d) can be accomplished by putting someone in fear of future
injury to his person or his property. Rather, it is accomplished by force and violence or by
intimidation. The statute provides, in relevant part:
(a) 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,
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custody, control, management, or possession of, any bank, credit union, or any
savings and loan association
(d) Whoever, in committing, or in attempting to commit, any offense defined in
subsections (a) and (b) of this section, assaults any person, or puts injeopardythe 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.
18 U.S.C.A. §§ 2113(a) and (d).
Second, bankrobberyunder § 2113 constitutes acrimeofviolenceundertheelementsclause
(also known as the force clause) of§ 924(c)(3). This was clearly illustrated by the Fourth Circuit
in United States v. McNeal, 818 F.3d 141 (2016), the same circuit that decided the Torres-Miguel
case relied on by Gutierrez:
In assessing whether bank robbery qualifies as a crime of violence under the
§ 924(c)(3) force clause, we do not write on a blank slate. Twenty-five years ago in
Adkins, our esteemed former colleague Judge Hall explained that "armed bank
robbery is unquestionably a crime of violence, because it 'has as an element the use,
attempted use, or threatened use of physical force against the person or property of
another.' "See 937 F.2d at 950 n. 2 (quoting 18 U.S.C. § 924(c)(3)(A)). We also
ruled decades ago that a § 2113(a) bank robbery is a crime of violence under the
force clause of Guidelines section 4Bl .2, which is nearly identical to the§ 924(c)(3)
force clause. See United States v. Davis, 915 F.2d 132, 133 (4th Cir.1990); accord
Johnson v. United States, 779 F.3d 125, 128-29 (2d Cir.2015); United States v.
Wright, 957 F.2d 520, 521 (8th Cir.1992); United States v. Jones, 932 F.2d 624, 625
(7th Cir.1991); United States v. Selfa, 918 F.2d 749, 751 (9th Cir.1990); United
States v. Maddalena, 893 F.2d 815, 819 (6th Cir.1989).
Our sister circuits have uniformly ruled that other federal crimes involving takings
"by force and violence, or by intimidation," have as an element the use, attempted
use, or threatened use of physical force. Earlier this year, for example, the Eighth
Circuit concluded that robbery in the special maritime and territorial jurisdiction of
the United States under 18 U.S.C. § 2111 satisfied the similarly worded force clause
in the Armed Career Criminal Act ("ACCA"), because it required a taking "by force
and violence, or by intimidation." See United States v. Boman, 810 F .3d 534, 542-43
(8th Cir.2016). The Second and Eleventh Circuits reached the same conclusion with
respect to the carjacking statute, 18 U.S.C. § 2119. See United States v. Moore, 43
F.3d 568, 572-73 (1 lthCir.1994); United States v. Mohammed, 27 F.3d 815, 819 (2d
Cir.1994).
(
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The logic of those decisions is straightforward. A taking "by force and violence"
entails the use of physical force. Likewise, a taking "by intimidation" involves the
threat to use such force. See, e.g., Jones, 932 F.2d at 625 ("Intimidation means the
threat of force."); Se/fa, 918 F.2d at 751 (explaining that the intimidation element of
§ 2113(a) meets "the [Guidelines] section 4Bl .2(1) requirement of a 'threatened use
of physical force'"). As the Seventh Circuit explained in its Jones decision, "[t]here
is no 'space' between 'bank robbery' and 'crime of violence' "because "violence in
the broad sense that includes a merely threatened use of force is an element of every
bank robbery." See 932 F.2d at 625.
In United States v. Presley, in 1995, we recognized the equivalence between
"intimidation" and the "threatened use of physical force," holding that a Virginia
robbery offense satisfied the ACCA force clause. See 52 F .3d 64, 69 (4th Cir.1995).
As we explained, Virginia had defined robbery as "the taking, with intent to steal, of
the personal property of another, from his person or in his presence, against his will,
by violence or intimidation." Id. Reasoning that"[ v ]iolence is the use of force," and
"[i]ntimidation is the threat of the use of force," we concluded that "robbery in
Virginia has as an element the use or threatened use of force." Id. Of course, our
Presley decision addressed a state crime, rather than a federal offense, and a State is
entitled to define its crimes as it sees fit. In this case, however, McNeal and Stoddard
have presented no sound basis for concluding that the "intimidation" element of
Virginia robbery is any narrower or broader than the "intimidation" element of
federal bank robbery.
Put succinctly, the reasoning ofJones, Se/fa, and Presley is persuasive. Bank robbery
under § 2113(a), "by force and violence," requires the use of physical force. Bank
robbery under § 2113(a), "by intimidation," requires the threatened use of physical
force. Either of those alternatives includes an element that is "the use, attempted use,
or threatened use of physical force," and thus bank robbery under § 2113(a)
constitutes a crime of violence under the force clause of§ 924(c)(3).
McNeal, 818 F.3d at 152-53. See also United States v. Fox, 2016 WL 3033067, *3 (I Ith Cir. May
26, 2016) (citing other federal courts of appeal that have held that bank robbery under § 2113
constitutes a crime of violence under 18 U.S.C. § 924(c)(3)(A)). This Court agrees that§ 2113 bank
robbery is a crime of violence under the elements clause of§ 924(c).
CONCLUSION
Johnson v. United States, 135 S.Ct. 2551 (2015), does not support Eugene Gutierrez's
§ 2255 motion to vacate his 2001 conviction on count 2 for brandishing a firearm in furtherance of
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a crime of violence under 18 U.S.C. § 924(c). For the reasons set forth above, it plainly appears that
Gutierrez is not entitled to relief on his claims, and the motion will be dismissed with prejudice. The
Court concludes that reasonable jurists would not find its assessment of the merits of Gutierrez's
motion debatable or wrong, and a certificate of appealability will not issue. Accordingly,
IT IS ORDERED:
(1)
That Eugene Gutierrez's Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C. § 2255, doc. 1, is dismissed with prejudice, and the
Clerk of Court shall notify the movant.
(2)
That a certificate of appealability is denied.
Dated this
tl.
~'f Clay of July, 2016.
BY THE COURT:
~Pi~~o-<..--United States District Judge
ATTEST:
JOSEPH HA~S, ~·· LERK
1\ 1) /1 '1.-fJ--, - ,
BY:
\'/)l() '9-AQJ,-'> t/'v\,
DEPUTY
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