Coe v. United States

          MEMORANDUM OF DECISION DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [DKT. 1]

          Hon. Vanessa L. Bryant United States District Judge

         Petitioner, Joseph Coe (“Petitioner” or “Mr. Coe”), seeks to have his sentence vacated pursuant to 28 U.S.C. § 2255. On February 2, 2002, Judge Ellen Burns sentenced Mr. Coe to 168 months in prison for one count of bank robbery in violation of 18 U.S.C. § 2113(a) in case number 3:00-cr-127. Judge Burns employed the then-mandatory United States Sentencing Guidelines (the “Guidelines”), determining that Mr. Coe was a career offender under § 4B1.1, having two prior convictions that qualified as “crimes of violence” under § 4B1.2. U.S. Sentencing Guidelines Manual (hereinafter “U.S.S.G.”) §§ 4B1.1, 1.2 (U.S. Sentencing Comm'n 2001). As a result, Mr. Coe was subject to an enhanced Guidelines range of 168 months to 210 months in prison. Judge Burns sentenced Mr. Coe to 168 months in prison.

         Mr. Coe now argues that the residual clause of § 4B1.2 is void for vagueness under the new rule announced in Johnson v. United States, 135 S.Ct. 2551 (2015), and made retroactively applicable to cases on collateral review in Welch v. United States, 136 S.Ct. 1257 (2016), and his sentence is therefore unconstitutional. In Johnson, the Supreme Court found void for vagueness the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), and held that imposing an increased sentence under the clause violates the Constitution's guarantee of due process. Johnson, 135 S.Ct. at 2563. Mr. Coe argues that the Johnson rule applies to the identically worded residual clause in the Guidelines' career offender provision. Mr. Coe further argues that his petition is not defeated by the Supreme Court's ruling in Beckles v. United States- finding that the post-United States v. Booker, 543 U.S. 220 (2005) (hereinafter “Booker”), advisory Guidelines cannot be challenged for vagueness because they do not fix sentences-because he was sentenced under the pre-Booker mandatory Guidelines.

         For the reasons discussed below, Mr. Coe's § 2255 Motion is DENIED. The residual clause of § 4B1.2 of the pre-Booker Guidelines is not void for vagueness as applied to Mr. Coe because his prior § 2113(a) federal bank robbery convictions qualify as crimes of violence under the elements clause of the § 4B1.2 and because the crime of robbery is explicitly enumerated in the commentary to the provision.

         Background

         A. Mr. Coe's Conviction and Sentence

         Mr. Coe was released from federal prison on March 30, 2000, and was serving a term of supervised release when, on the morning of May 6, 2000, he robbed a bank in New Haven, Connecticut. 00-cr-127, [Presentence Report (“PSR”) at ¶¶ 4-10]. A grand jury in the United States District Court for the District of Connecticut returned an indictment charging Petitioner with one count of bank robbery in violation of 18 U.S.C. § 2113(a) on June 15, 2000. See, 3:00-cr- 127, [Dkt. 1 (Indictment) at ¶ 1]. Mr. Coe was arrested on June 27, 2000, in Camp Verde, Arizona. 00-cr-127, [PSR at ¶ 10]. On November 12, 2001, Mr. Coe pled guilty to the one charge of bank robbery without a plea agreement. [Dkt. 1 at ¶ 2].

         Petitioner's sentencing hearing was held on February 1, 2002. [Dkt. 1 at ¶ 3]. Judge Burns determined that Mr. Coe was a career offender based on his prior convictions and accounted for the resulting Guidelines range increase, 168 to 210 months in prison.^[1] Id. at ¶¶ 3-4. The “Career Offender” provision of the applicable Guidelines at the time (the 2001 Guidelines) read:

A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI.

U.S.S.G. § 4B1.1 (Nov. 2, 1001) (emphasis added). The 2001 Guidelines defined “crime of violence” for purposes of the career offender provision as follows:

(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that --

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2. The “Application Notes” in the commentary for § 4B1.2 further stated that, “[f]or the purposes of this guideline, ” “‘crime of violence' includes . . .robbery . . .” Id. § 4B1.2 cmt. n.1 (Nov. 2001).

         Judge Burns sentenced Mr. Coe to 168 months in prison to run concurrently with the 96 months Mr. Coe was already serving for convictions in case numbers 3:85-cr-27 and 3:88-cr-62, followed by three years of supervised release. 00-cr-127, [Dkt. 34]. Mr. Coe did not appeal his conviction or sentence.

         B. The Legal Background

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015), finding the residual clause of the ACCA, 18 U.S.C. § 924(e)(1), void for vagueness. Under the ACCA, a defendant who possessed a firearm after three or more convictions for a “serious drug offense” or a “violent felony” was subject to a minimum sentence of 15 years, 5 years more than the 10 year maximum under the felon in possession of a firearm statute on its own. Johnson, 135 S.Ct. at 2556. The ACCA defined “violent felony” as:

Any crime punishable by imprisonment for a term 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 use of explosives, or otherwise involves conduct that presents serious potential ...