United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
RUSS WALKER UNITED STATES MAGISTRATE JUDGE.
the court is federal inmate Marcus Rashawn Smith's motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct
sentence. Doc. # 1.
April 9, 2007, Smith pleaded guilty to two counts of armed
bank robbery, in violation of 18 U.S.C. § 2113(a), (d)
(Counts 1 and 4); two counts of brandishing a firearm during
a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A)(ii) (Counts 2 and 5); and two counts of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. § 922(g) (Counts 9). The two armed bank
robberies served as the predicate “crimes of
violence” for Smith's two § 924(c)
convictions. See Doc. # 9-1 at 2-4. After a
sentencing hearing on March 21, 2008, the district court
sentenced Smith to 430 months in prison, consisting of 46
months on Counts 1, 3, 4, and 6, to be served concurrently
with each other; 300 months on Count 5, to be served
consecutively to the terms imposed and Counts 1, 3, 4, and 6;
and 84 months on Count 2, to be served consecutively to the
terms imposed on Counts 1, 3, 4, and 6. See Doc. #
1-2 at 2. Smith did not appeal.
31, 2016, Smith filed this § 2255 motion arguing that,
in light of the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015), his armed bank
robbery convictions cannot qualify as predicate “crimes
of violence” for his § 924(c) convictions, and
therefore his convictions and sentence under § 924(c)
are invalid. See Doc. # 1.
reasons that follow, the Magistrate Judge finds that
Smith's § 2255 motion should be denied and this case
dismissed with prejudice.
18 § 924(c) provides in part that a defendant who uses
or carries a firearm “during and in relation to any
crime of violence or drug trafficking crime, ” or
possesses a firearm in furtherance of such crimes, shall, in
addition to the punishment provided for such crime of
violence or drug trafficking crime, be sentenced to a
separate and consecutive term of imprisonment.
purposes of § 924(c), a “crime of violence”
is defined as a felony offense that:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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) of §
924(c)(3) is referred to as the “use-of-force clause,
” and subsection (B) is referred to as the
“§ 924(c)(3)(B) residual clause.” See In
re Saint Fleur, 824 F.3d 1337, 1339 (11th Cir.
separate but similar sentencing provision, the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
defines the term “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 ...