White v. United States

          MEMORANDUM OPINION

         Desharese 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).^[1]

         In 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 years;

(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”

         as 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) (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 vague.”).

         White 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, ^[2] 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), ^[3] White cannot proceed because his conviction and sentence did not fall under the residual cause of § 924(c)(3).

         This 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), ^[4] and to 84 months' imprisonment for brandishing a firearm during the robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii).^[5] 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, ...