United States District Court, N.D. Alabama, Western Division
LOVELACE BLACKBURN, SENIOR UNITED STATES DISTRICT JUDGE.
case is presently pending before the court on petitioner
Joshua Ikeem Williams's Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence by a Person in
Federal Custody [hereinafter Motion to Vacate]. (Doc. 1;
crim. doc. 29.) Citing Johnson v. United States, 135 S.Ct.
2551 (2015), Williams contends that he was improperly
sentenced under 18 U.S.C. § 924(c). Because binding
Eleventh Circuit precedent bars Williams's claims on the
merits, the court assumes that his Motion to Vacate is timely
filed and is not procedurally barred. For the reasons set
forth below, the court finds that Williams's Motion to
Vacate is due to be denied and his petition dismissed without
notice to the Government. See 28 U.S.C.
April 30, 2014, an Indictment was filed against Williams.
(Crim. doc. 1.) The Indictment charged Williams with two
counts of bank robbery in violation of 18 U.S.C. §
2113(a), three counts of armed bank robbery in violation of
18 U.S.C. § 2113(a) and (d), and two counts of
brandishing a firearm during a crime of violence (armed bank
robbery) in violation of 18 U.S.C. § 924(c)(1)(A).
(Id.) Pursuant to a Plea Agreement with the
Government, Williams pled guilty to all counts. (Crim. doc.
8; crim. doc. 16.) He was sentenced to 12 months on each
count of bank robbery and armed bank robbery with the
sentences to be served concurrently. (Crim. doc. 16 at 2.) On
Count Four, charging brandishing a firearm during the armed
bank robbery set forth in Count Three, Williams was sentenced
to 84 months to be served consecutively to all other counts.
(Id.) He received 144 months on Count Six, charging
Williams brandished a firearm during the armed bank robbery
charged in Count Five; this sentence was to be served
consecutively to the sentence received for all other counts.
(Id.) Williams's “total custodial
sentence” was 240 months. (Id.)
conviction and sentence were affirmed on appeal. (Crim. doc.
29, 2016, Williams, who is proceeding pro se, filed the
instant Motion to Vacate. (Crim. doc. 29; doc. 1.) In his
Motion to Vacate, Williams challenges his conviction under
§ 924(c) based on Johnson v. United States, 135 S.Ct.
2551 (2015); he states:
[P]etitioner's 18 U.S.C. § 924(c) conviction only
qualifies as a crime of violence under the Residual Clause to
that section of the statute. In light of the Supreme
Court's decision in Johnson v. United States, which held
that the Residual Clause to the ACCA statute is
Unconstitutional[.] [T]herefore it's void for vagueness
under the due process clause.
(Doc. 1 at 4.) Williams argues that armed bank robbery is not
a crime of violence § 924(c). (See generally doc. 2.)
Williams contends his Motion to Vacate is timely based on the
Johnson decision. (Id. at 2.)
Johnson, the Supreme Court held that definition of a
“violent felony” set forth in the residual clause
of the Armed Career Criminal Act [“ACCA”], 18
U.S.C. § 924(e)(2)(B)(ii), was void for vagueness.
Johnson, 135 S.Ct. at 2563. The Court also held,
“Today's decision does not call into question
application of the [ACCA] to the four enumerated offenses, or
the remainder of the [ACCA's] definition of a violent
felony.” Id. The decision did not address the
definition of a crime of violence found in § 924(c)(3).
was convicted of two counts of brandishing a firearm during a
crime of violence in violation of 28 U.S.C. §
924(c)(1)(A)(ii) and § 924(c)(1)(C)(i), which state:
(c)(1)(A) Except to the extent that a greater minimum
sentence is otherwise provided by this subsection or by any
other provision of law, any person who, during and in
relation to any crime of violence . . . (including a crime of
violence . . . that provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or
device) for which the person may be prosecuted in a court of
the United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm, shall, in
addition to the punishment provided for such crime of
violence . . . -
. . .
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years . . . .
(C) In the case of a second or subsequent conviction under
this subsection, ...