United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Patrick Lyons'
(“Lyons”) motion to vacate, set aside, or correct
a sentence pursuant to 28 U.S.C. § 2255 (Doc. 61) and
the United States' response (Doc. 64). This is Lyons'
first § 2255 motion. For the reasons discussed herein,
the motion is DENIED.
2000, Lyons was sentenced to 272 months' imprisonment.
This term consisted of 188 months as to Lyons' conviction
for armed bank robbery pursuant to 18 U.S.C. § 2113(a)
and (d) (Count 1), and a consecutive 84 month term pursuant
to his conviction for using a firearm during the robbery, in
violation of 18 U.S.C. § 924(c)(1)(A) (Count 2). (Doc.
39). Lyons' presentence investigation report
(“PSR”) stated that he was a career offender
under U.S.S.G. § 4B1.1 because he had “at least
two prior felony convictions for crimes of violence and/or
controlled substance offenses as detailed in ‘PART B[,
]' [the criminal history section.]” (Exhibit 1 at
¶ 34). The PSR did not specify which convictions
in Lyons' criminal history were used to support the
career offender determination and the Court did not do so at
sentencing. However, there were no objections to Lyons'
categorization as a career offender. His conviction and
sentence were later affirmed by the Court of Appeals for the
Eleventh Circuit. (Doc. 46).
Motion Pursuant to § 2255
contends that he is entitled to relief on based on two
grounds: 1) his conviction pursuant to 18 U.S.C. §
924(c)(1)(A) violates due process under Johnson v. United
States, 135 S.Ct. 2551 (2015); and 2) he was unlawfully
sentenced pursuant to the Career Offender guideline, U.S.S.G.
§ 4B1.1. As discussed herein, both arguments are without
merit and Lyons' motion pursuant to §2255 is DENIED.
18 U.S.C. § 924(c) claim
§ 924(c) claim is based in part on the holding in
Johnson v. United States, 135 S.Ct. 2251 (2015). In
Johnson, the United States Supreme Court held that
the residual clause of the Armed Career Criminal Act
(“ACCA”) (18 U.S.C. § 924(e)) 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. 135 S.Ct. 2251,
2557-58, 2563 (2015).
was not sentenced pursuant to the ACCA. He was sentenced
pursuant to § 924 (c)(1), which provides for a mandatory
consecutive sentence for any defendant who uses a firearm
during a crime of violence or a drug trafficking crime. 18
U.S.C. § 924(c)(1). Section 924(c)(3)(A)-(B) states:
For purposes of this subsection the term “crime of
violence” means 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)-(B). Though the Court of
Appeals has acknowledged the similarity of the residual
clauses of 18 U.S.C. §§ 924(c) and 924(e), it has
yet to decide whether Johnson extends to the
residual clause contained in § 924(c)(3)(B). In re
Pinder, 824 F.3d 977, 978 (11th Cir. 2016 (“Our
Court hasn't decided if Johnson applies to
§ 924(c)(3)(B). However, the language in § 924(c)
and § 924(e) is very similar.”).
this similarity, even if Johnson were to apply to
§ 924(c), Lyons' claim fails. Lyons' §
924(c) conviction was based on his companion conviction for
bank robbery in violation of § 2113(a) (Count 1). As the
Court of Appeals for the Eleventh Circuit held in In re
Sams has not made a prima facie showing for relief
under Johnson as to his conviction pursuant to
§ 924(c). Sams's § 924(c) conviction was based
on his companion conviction for bank robbery, in violation of
§ 2113(a), which requires that the defendant take the
property of a bank “by force and violence, or by
intimidation.” See 18 U.S.C. § 2113(a).
We have concluded that an armed bank robbery conviction
pursuant to § 2113(a) and (d) qualifies as a crime of
violence because it requires as an element, “the use,
attempted use, or threatened use of physical force against
the person or property of another, ” as set out in
§ 924(c)(3)(A). Hines, 2016 WL 3189822, at *3,
824 F.3d at 1337. Additionally, as to the “by
intimidation” language contained in § 2113(a),
this Court has held that similar language still satisfies the
§ 924(c)(3)(A) use-of-force clause. See United
States v. Moore, 43 F.3d 568, 572-73 (11th Cir. 1994)
(concluding, in the context of the federal carjacking
statute, 18 U.S.C. § 2119, that “[t]aking or
attempting to take by force and violence or by
intimidation ... encompasses the use, attempted use, or
threatened use of physical force.” (emphasis added)
(quotation marks and alterations omitted)).
While we have not directly held that a bank robbery
conviction under only § 2113(a), rather than an armed
bank robbery conviction under § 2113(a) and (d),
qualifies as a crime of violence under the §
924(c)(3)(A) use-of-force clause, the statutory language in
§ 2113(a) and our holdings in Hines and
Moore make clear that such a conviction falls within
the scope of the § 924(c)(3)(A) use-of-force clause.
Indeed, other circuits have concluded that a bank robbery
conviction under § 2113(a) qualifies as a crime of
violence under the § 924(c)(3)(A) use-of-force clause.
See United States v. McNeal, 818 F.3d 141, 153 (4th
Cir. 2016) (concluding that a bank robbery conviction under
§ 2113(a) qualifies as a “crime of violence”
under the § 924(c)(3)(A) use-of-force clause because (1)
bank robbery “by force and violence” requires the
use of physical force, (2) bank robbery “by
intimidation” requires the threatened use of physical
force, and (3) “[e]ither of those alternatives includes
an element that is the use, attempted use, or threatened use
of physical force”) (quotation marks omitted);
Royal v. Tombone, 141 F.3d 596, 602 (5th Cir. 1998)
(noting that a bank robbery conviction under § 2113(a)
“includes as a necessary element the use of force and
violence or intimidation” and referencing the §
924(c)(3)(A) use-of-force clause to conclude that ...