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Smith v. United States

United States District Court, M.D. Alabama, Northern Division

August 8, 2018

MARCUS RASHAWN SMITH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RECOMMENDATION OF THE MAGISTRATE JUDGE

          SUSAN RUSS WALKER UNITED STATES MAGISTRATE JUDGE.

         Before 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.[1]

         I. INTRODUCTION

         On 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.

         On May 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.

         For the reasons that follow, the Magistrate Judge finds that Smith's § 2255 motion should be denied and this case dismissed with prejudice.

         II. DISCUSSION

         Title 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.[2]

         For 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 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) 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. 2016).

         A separate but similar sentencing provision, the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), [3] 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 ...

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