United States District Court, D. Connecticut
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 ...