United States District Court, N.D. Alabama, Western Division
DESHARESE K. WHITE, Movant/Defendant,
UNITED STATES OF AMERICA, Respondent.
K. White asks this court to appoint an attorney to assist him
with a motion to vacate, alter, or amend his sentence under
28 U.S.C. § 2255, as a result of the Supreme Court's
recent decision in United States v. Davis, No.
18-431, 2019 WL 2570623 (June 24, 2019).
Davis, the court considered the constitutionality of
18 U.S.C. § 924(c), which “threatens long prison
sentences for anyone who uses a firearm in connection with
certain other federal crimes.” Davis, 2019 WL
2570623, at *3. Specifically, the statute states:
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime
(including a crime of violence or drug trafficking crime that
provides for an enhanced punishment if committed by the use
of a deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United States,
uses or carries a firearm, or who, in furtherance of any such
crime, possesses a firearm, shall, in addition to the
punishment provided for such crime of violence or drug
trafficking crime -
(i) be sentenced to a term of imprisonment of not less than 5
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A) (emphasis supplied). The
statute defined a “crime of violence”
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
(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) (emphasis supplied). The first
definition, encompassed in subparagraph (A), is referred to
as the “elements clause, ” and the second
definition, encompassed in subparagraph (B), is referred to
as the “residual clause.” The Davis
decision struck down the residual clause as being
unconstitutionally vague. Davis, 2019 WL 2570623, at
*13 (“We agree with the court of appeals'
conclusion that § 924(c)(3)(B) is unconstitutionally
is not entitled to the appointment of an attorney because he
is not entitled to any relief based upon the Davis
decision. Even without considering whether Davis can
be applied retroactively,  whether White's motion can be
considered in conjunction with the present case, and whether
any claim based upon the Davis decision would
constitute a second or successive petition requiring advance
permission from the Eleventh Circuit under 28 U.S.C. §
2255(h),  White cannot proceed because his
conviction and sentence did not fall under the residual cause
of § 924(c)(3).
court sentenced White on October 26, 2012, to 37 months'
imprisonment for armed bank robbery, in violation of 18
U.S.C. §§ 2113(a) and (d),  and to 84 months'
imprisonment for brandishing a firearm during the robbery, in
violation of 18 U.S.C. § 924(c)(1)(A)(ii). The Eleventh
Circuit has clearly held that armed bank robbery under 18
U.S.C. §§ 2113(a) and (d) qualifies as a
“crime of violence” under the “elements
clause” of 18 U.S.C. § 924(c)(3). In re
Hines, 824 F.3d 1334, 1337 (11th Cir. 2016). Because
White's § 924(c) conviction and sentence were
predicated upon the “elements clause” of that
statute, instead of the “residual clause, ...