Kreier v. USA
Filing
7
OPINION & ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255. Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22. Signed by District Judge James D. Peterson on 8/31/2017. (kwf)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
KARL KREIER,
Petitioner,
OPINION & ORDER
v.
UNITED STATES OF AMERICA,
14-cr-110-jdp-2
16-cv-430-jdp
Respondent.
Pro se petitioner Karl Kreier is a federal prisoner incarcerated at the Federal
Correctional Institution in Terre Haute, Indiana. In 2015, he pleaded guilty to obstruction of
interstate commerce by robbery under 18 U.S.C. § 1951 and armed bank robbery under 18
U.S.C. §§ 2113(a) and (d). I sentenced him to 205 months in prison. United States v. Kreier,
No. 14-cr-110-jdp-2, Dkt. 64, at 3 (W.D. Wis. May 22, 2015).
Kreier moves for resentencing under 28 U.S.C. § 2255, arguing that he is not a career
offender under the United States Sentencing Guidelines § 4B1.1 because his offenses of
conviction under §§ 1951 and 2113(a) and (d) are not crimes of violence. Dkt. 1. After
reviewing his motion under Rule 4 of the Rules Governing Section 2255 Proceedings for the
United States District Courts, I will deny Kreier’s motion.
BACKGROUND
In October 2014, Kreier was arrested for an armed bank robbery. The government
accused him of, among other things, brandishing a gun during an armed bank robbery and
acting as a getaway driver.
Kreier pleaded guilty to the following charges:
Counts 1, 3, 5, 6, 8: obstruction of interstate commerce by
robbery under 18 U.S.C. § 1951;
Count 10: armed bank robbery under 18 U.S.C. § 2113(a) and
(d); and
Count 11: use of a firearm during a crime of violence under 18
U.S.C. § 924(c).
Kreier, No. 14-cr-110-jdp-2, Dkt. 62, at 4. I sentenced him in May 2015.
I concluded that Kreier was a career offender under the Career Offender Guideline,
USSG § 4B1.1. Under § 4B1.1, at the time of Kreier’s sentencing, a criminal defendant was a
career offender if he satisfied three conditions:
(1) the defendant was at least eighteen years old at the time the
defendant committed the instant offense of conviction;
(2) the instant offense of conviction is a felony that is either a
crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of
either a crime of violence or a controlled substance offense.
In Kreier’s case, he was at least 18 at the time of his offenses, and his robbery convictions were
crimes of violence. He also had two prior qualifying convictions: (1) attempted manufacture or
delivery of schedule I or II narcotics under Wisconsin law (State v. Kreier, No. 2004-CF-285
(Columbia Cty. Cir. Ct. filed Aug. 2, 2004)); and (2) being party to robbery with use of force
under Wisconsin law (State v. Kreier, No. 2009-CF-623 (Dane Cty. Cir. Ct. filed Apr. 10,
2009)). Dkt. 62, at 5.
ANALYSIS
Kreier contends that he should be re-sentenced on three grounds: (1) the Supreme
Court’s decision in Samuel Johnson v. United States, 135 S. Ct. 2551 (2015) made the residual
2
clause of § 4B1.2(a) unconstitutional; (2) his offense of conviction for robbery under § 1951
is no longer a crime of violence under the force clause of § 4B1.2(a); and (3) his offense of
conviction for robbery under § 2113(a) is no longer a crime of violence under the force clause
of § 4B1.2(a). Each of these three grounds lacks merit.
I start with Kreier’s residual clause issue, which lacks merit for two reasons. Generally,
the Supreme Court’s “jurisprudence with respect to the [Armed Career Criminal Act] applies
with equal force to our interpretation of the ‘closely analogous’ career offender guideline.”
United States v. Lynn, 851 F.3d 786, 795 n.17 (7th Cir. 2017) (quoting United States v. Woods,
576 F.3d 400, 403 (7th Cir. 2009)). But, despite the general rule, the Supreme Court has held
that the residual clause under § 4B1.2(a) of the Guidelines is not subject to a vagueness
challenge under Samuel Johnson. See Beckles v. United States, 137 S. Ct. 886, 892 (2017).
Furthermore, Kreier’s robbery offenses are violent crimes because they satisfy both the
enumerated clause and the force clause of § 4B1.2. The residual clause is not the basis for any
of Kreier’s predicate offenses, so Samuel Johnson does not apply here.
For Kreier’s second and third grounds, he contends that his offenses of conviction—
both federal robbery convictions—are not crimes of violence. But robbery is one of the
enumerated crimes under the definition of “crime of violence” in § 4B1.2(a)(2). I am aware of
no precedent that raises any doubt whether convictions for Hobbes Act robbery under § 1951
or armed bank robbery under § 2113(a) are crimes of violence under the enumerated clause of
the Career Offender Guideline.
Besides, these convictions also are crimes of violence under the force clause in
§ 4B1.2(a)(1). Robberies under §§ 1951(a) and 2113(a) and (d) are violent crimes under the
ACCA’s force clause. United States v. Anglin, 846 F.3d 954, 965 (7th Cir. 2017) (discussing
3
§ 1951(a)); United States v. Armour, 840 F.3d 904, 907-09 (7th Cir. 2016) (discussing
§§ 2113(a) and (d)). Even after the Beckles decision, the analysis based on the force clause is
the same under both the ACCA and under § 4B1.2. See United States v. Jennings, 860 F.3d 450,
453 (7th Cir. 2017) (“The guideline’s definition of ‘crime of violence’ includes a force clause
that is identical to the force clause of section 924(e), . . . and consequently the analysis as to
whether a particular conviction constitutes a crime of violence because it has as an element the
use of force is the same whether we are applying the guideline or the ACCA.”). Thus, under
either clause of § 4B1.2, Kreier’s federal robbery convictions are crimes of violence.
Kreier contends that neither Hobbes Act robbery under § 1951 nor armed bank robbery
under § 2113(a) requires use of force because each could be committed by intimidation. I take
him to be asserting a challenge under Curtis Johnson v. United States, 559 U.S. 133 (2010).
Under § 1951, robbery can be committed by “fear of injury,” and under § 2113(a), it can be
committed by “intimidation.” Both “fear of injury” and “intimidation” have been interpreted
to mean fear and intimidation of bodily injury sufficient to establish these two offenses as
crimes of violence.1
Kreier raises no challenge to the categorization of his predicate offenses as crimes of
violence, and I see no reasonable basis to do so. In sum, Kreier cannot show that sentencing
him under the Career Offender Guideline was improper, so I will deny his motion.
1
Anglin, 846 F.3d at 965 (holding that “fear of injury” under § 1951 establishes a crime of
violence); Armour, 840 F.3d at 909 (“Intimidation [under § 2113(a)and (d)] means the threat
of force.” (citation omitted))); see also United States v. Duncan, 833 F.3d 751, 758 (7th Cir.
2016) (“In the ordinary case, robbery by placing a person in fear of bodily injury . . . qualifies
as a violent felony under § 924(e)(2)(B)(i).”); United States v. Lewis, 405 F.3d 511, 514 (7th
Cir. 2005) (equating “the use, attempted use, or threatened use of physical force” with “putting
any person in fear” of physical injury).
4
Under Rule 11 of the Rules Governing Section 2255 Cases, I must issue or deny a
certificate of appealability when entering a final order adverse to Kreier. I will not issue a
certificate of appealability unless Kreier makes “a substantial showing of the denial of a
constitutional right,” 28 U.S.C. § 2253(c)(2), which requires him to demonstrate “that
reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel,
529 U.S. 473, 484 (2000)). Although the rule allows me to ask Kreier to submit a brief on
appealability, it is not necessary to do so in this case. No reasonable jurist would debate this
decision, so I will not issue Kreier a certificate of appealability.
ORDER
IT IS ORDERED that:
1. Petitioner Karl Kreier’s motion to vacate sentence under 28 U.S.C. § 2255, Dkt. 1,
is DENIED.
2. The clerk of court is directed to enter judgment in favor of respondent and close the
case.
5
3. Petitioner is DENIED a certificate of appealability. If petitioner wishes, he may seek
a certificate from the court of appeals under Federal Rule of Appellate Procedure
22.
Entered August 31, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?