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Lyons v. United States

United States District Court, S.D. Alabama, Southern Division

March 15, 2017

PATRICK LYONS
v.
UNITED STATES OF AMERICA, CRIMINAL

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This 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.

         I. Background

         In 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).[1] 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).

         II. Motion Pursuant to § 2255

         Lyons 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.

         A. 18 U.S.C. § 924(c) claim

         Lyons' § 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).[2]

         Lyons 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).[3] 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.”).

         Despites 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:

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 ...

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