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Oliver v. United States

United States District Court, N.D. Alabama, Northeastern Division

January 3, 2018

TAVARES ANTWAN OLIVER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE

         The movant Tavares Antwan Oliver filed a motion to vacate, set aside, or correct his sentence on April 29, 2016, [1] contending that the court should vacate his conviction and sentence under 18 U.S.C. § 924(c) because armed bank robbery no longer qualifies as a “violent felony” after the Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court struck down the “residual clause” in 18 U.S.C. § 924(e) of the Armed Career Criminal Act (ACCA) as unconstitutionally vague. Johnson, 135 S.Ct. at 2557. Mr. Oliver urges this court to extend the holding in Johnson regarding the unconstitutionally vague “residual clause” in § 924(e) to the similar “risk-of-force” clause found in § 924(c). For the following reasons, the court refuses to extend Johnson beyond its holding and finds that Mr. Oliver's motion to vacate is due to be DENIED. Procedural History

         Mr. Oliver pled guilty on May 14, 2012 to two counts of armed bank robbery under 18 U.S.C. § 2113(a) and (d), two counts of brandishing a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii), and one count of bank robbery under 18 U.S.C. § 2113(a) and 2(a).[2] On November 5, 2012, the court sentenced Mr. Oliver to 77 months imprisonment for the armed bank robbery and robbery counts and a consecutive term[3] of 84 months for one of the § 924(c) counts and another consecutive term of 300 months for the other § 924(c) count, for a total of 461 months imprisonment. (Doc. 21 in 5:12-cr-125). Mr. Oliver appealed his sentence to the Eleventh Circuit, which affirmed the district court's sentence on July 16, 2013. (Doc. 30 in 5:12-cr-125).

         Mr. Oliver filed his motion to vacate almost three years later under 18 U.S.C. § 2255(f)(3), which allows a petitioner to file a motion to vacate within one year 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.” He claims that the Supreme Court's decision in Johnson makes his conviction and sentence under § 924(c) unconstitutional, and that the Supreme Court in Welch v. United States, 136 S.Ct. 1257 (2016) made the Johnson holding retroactive to cases on collateral review.

         The court ordered the Government to show cause why it should not grant Mr. Oliver the relief he seeks (doc. 2), and the Government responded, arguing that the decision in Johnson did not apply or, alternatively, was of no consequence because Mr. Oliver's predicate offenses of armed bank robbery were “crimes of violence” under the “elements clause” that the Supreme Court did not invalidate in Johnson (doc. 4). After reviewing the Government's response, the court issued its “Order Regarding Summary Disposition, ” giving Mr. Oliver an opportunity to submit any additional materials and evidence before the court rendered its decision without a hearing. (Doc. 5). Mr. Oliver then submitted his reply to the Government's response (doc. 7) and filed three motions to amend or supplement his habeas motion with case law decided by other circuits that do not deal with armed bank robbery as a predicate offense. See (Docs. 6, 8, & 9). Nevertheless, unfortunately for Mr. Oliver, Johnson does not apply to his case and his motions to amend or supplement would be futile.

         Discussion

         In Johnson, the Supreme Court found the “residual clause” of the ACCA, 18 U.S.C. § 924(e), unconstitutionally vague. Under the ACCA, a defendant convicted as a felon in possession of a firearm under 18 U.S.C. § 922(g) and who has three prior “violent felonies” or serious drug offense faces an enhanced mandatory minimum sentence of fifteen years. See 18 U.S.C. § 924(e)(1). Section 924(e) defines a “violent felony” as any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the 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 clause of the definition is the “elements clause, ” while the second clause contains the “enumerated crimes” and the “residual clause” that involves the “serious potential risk of physical injury to another.” See Unites States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). The Supreme Court in Johnson found the “residual clause” of the ACCA “violent felony” definition unconstitutionally vague, but left in tact the “elements clause” and the “enumerated crimes.” Johnson, 135 S.Ct. at 2563.

         However, the ACCA does not apply to Mr. Oliver, and the court did not sentence him under the ACCA. Instead, Mr. Oliver was convicted under § 924(c), which provides for a consecutive sentence for a defendant who brandishes a firearm during and in relation to a drug trafficking crime or a “crime of violence.” See 18 U.S.C. § 924(c)(1)(A). A “crime of violence” under § 924(c) includes 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 of another 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). Subsection (A) is known as the “use-of-force” or “elements clause, ” while subsection (B) is referred to as the “risk-of-force” or “residual clause.” Ovalles ...


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