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Shuck v. United States

United States District Court, S.D. Georgia, Savannah Division

January 31, 2017

NICHOLAS BRIAN SHUCK, Movant,
v.
UNITED STATES OF AMERICA, Respondent. No. CR411-007

          REPORT AND RECOMMENDATION

         Guilty-plea convicted for bank robbery in violation of 18 U.S.C. § 2113(a), docs. 54 (plea agreement), 53 (judgment), [1] Nicholas Shuck moves under 28 U.S.C. § 2255 to have his sentenced vacated. Doc. 72. He seeks to exploit the new rule announced in Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551 (2015), and made retroactive by Welch v. United States, 578 U.S.__, 136 S.Ct. 1257 (2016), to neutralize his 168-month enhanced[2] sentence. He also contends his counsel was ineffective for failing to argue on appeal that the Court erred by not recommending substance abuse treatment as part of his sentence. Doc. 72. The Government opposes. Doc. 75. Review of the parties' briefing shows that Shuck's motion must be denied.

         A. BACKGROUND

         Movant was charged with and pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). Docs. 1 & 53. As part of his plea agreement, Shuck agreed to the accuracy of the allegations against him. Doc. 54 at 5. At his plea hearing, he admitted to having committed (and been convicted of) four prior bank robberies in Connecticut, North Carolina, Georgia, and Arkansas. Doc. 63 at 17-18 (noting that after his release from his incarceration for those robberies, it was only "eight months before [he] relapsed" and committed the instant bank robbery); see United States v. Shuck, W.D. Ark. No. CR405-40014 (consolidating W.D. Arkansas cases Nos. CR405-40008, CR404-40035, CR404-40023, and CR405-40014) at docs. 6 (plea agreement) & 10 (judgment imposing 70 months' imprisonment on four counts of bank robbery by force or violence in violation of 18 U.S.C. § 2113(a) and one count of consipiray to commit bank robbery in violation of 18 U.S.C. § 371, counted as a single sentence).

         The Court asked if he fully understood the ramifications of a guilty plea, and Shuck testified he did. Id. at 25-28. He said that he had read the plea agreement, that his attorney had explained it to him, and that it was consistent with what he and the Government had agreed upon. Id. at 29-30; id. at 31 (no one pressured him to enter a guilty plea or made him any promises not included in the agreement). He also testified that there was "absolutely not" a thing more his counsel should have done in representing him, and that she was a "very competent and capable attorney." 7c?. at 24. Given all that, Shuck unambiguously stated that he wished to plead guilty, because he was "in fact guilty." Id. at 32.

         He did not object to the facts set forth in the PSR, but movant's counsel did argue that because his four prior robberies had been accomplished by "intimidation" rather than by "force or violence" (all involved handing threatening notes over to cashiers, demanding money, rather than by brandishing any weapon), they were not truly "crimes of violence" warranting career offender enhancement under the Sentencing Guidelines. Doc. 62 at 6, 9-10, 30-34. The Government responded that a "crime of violence" involves the attempted use or threatened use of physical force, and Shuck's note to the teller ("don't panic, empty both drawers now, this is not a joke, you have 30 seconds before I start shooting") clearly met that definition. Id. at 10-14 (arguing robbery by intimidation was an "enumerated offense" under the Guidelines).

         Based on his four prior bank robberies, the PSR, testimony (both in support of the facts and in mitigation), and the briefs from counsel and the Government, the Court sentenced Shuck to 168 months' imprisonment. Id. at 41-44. His judgment was affirmed on appeal. United States v. Shuck, 481 F.App'x 600 (11th Cir. 2012) (rejecting Shuck's argument that § 2113(a) bank robbery did not qualify as a crime of violence for career offender enhancement under the Sentencing Guidelines).

         B. ANALYSIS

         Shuck presents several grounds for relief: (1) Johnson renders his sentence unconstitutional (2) this Court erred in failing to consider mitigating evidence, or recommend his placement in a substance abuse program; and (3) ineffective assistance of counsel for failing to raise those errors on appeal. Doc. 72.

         1. Career-Offender Predicate Offenses

         Movant contends that his prior state convictions for aggravated assault and bank robbery no longer qualify as ACCA predicates for an enhanced sentence after Johnson. Doc. 72 at 5. He was not, however, sentenced as a career offender under the ACCA - his sentence was calculated pursuant to the Guidelines. See PSR; docs. 50-51, 53, 54, 62, 63. As the Government notes, this Circuit has held that Johnson does not apply in the context of the advisory Sentencing Guidelines. Doc. 75 at 2 (citing United States v. Matchett, 802 F.3d 1185, 1193-94 (11th Cir. 2015)).[3] Every other circuit, however, has held that it does.[4] See In re Clayton, 829 F.3d 1254, 1256 (11th Cir. 2016) (concurrence) (following Matchett but cautioning that that every other court of appeals "has either held or assumed that Johnson makes the language in § 4B1.2(a)(2) of the Sentencing Guidelines unconstitutional.") (citing Beckles v. United States, __ U.S. __, 136 S.Ct. 2510 (2016) (granting certiorari as to whether Johnson applies to the Sentencing Guidelines' definition of "crime of violence" and, if so, whether the Beckles decision will apply retroactively to cases on collateral review)); Johnson, 2016 WL 6775916 at*3.

         Even if Johnson is deemed to apply in this context, Shuck would still qualify as a career offender. A defendant qualifies as a career offender under the Guidelines if he is at least 18 years old, has at least two prior felony convictions for either a crime of violence or a controlled substance offense, and his instant federal conviction is for either a crime of violence or a controlled substance offense. U.S.S.G. § 4Bl.l(a). An offense qualifies as a crime of violence if: (1) the defendant committed an enumerated offense; (2) "the use, attempted use, or threatened use of physical force against another was an element of the offense;" or (3) "the conduct for which the defendant was convicted presented a serious risk of physical injury to another person." United States v. Lockley, 632 F.3d 1238, 1241 (11th Cir. 2011); U.S.S.G. § 4B1.2(a) (2015). Shuck's sentencing was based on two prior convictions: one conviction for Georgia aggravated assault and four convictions for bank robbery by force or violence in violation of 18 U.S.C § 2113(a) (see Shuck, W.D. Ark. No. CR405-40014, consolidated and counted as a single sentence). PSR at ¶¶ 29 & 30; see also doc. 62 at 31-33, 43-44 (sentencing hearing transcript).

         Shuck never robbed a bank using a weapon. Rather, he would slip a note to a teller with a threat. See PSR at ¶ 30 ("Don't panic. Just empty the drawer of everything but the singles and no one gets hurt. This is not a joke. And hurry up."); PSR at ¶ 31 ("DON'T PANIC!!! Empty the F**king drawer and no one gets hurt."); see also Shuck, W.D. Ark. No. CR405-40014 at docs. 6 (plea agreement) & 10 (judgment imposing 70 months' imprisonment on four counts of bank robbery by force or violence in violation of 18 U.S.C. § 2113(a) and one count of conspiracy to commit bank robbery in violation of 18 U.S.C. § 371).[5]

         Movant unsuccessfully argued at sentencing (and on appeal) that his bank robberies - accomplished without brandishing or possessing a weapon - were "by intimidation" rather than "by force or violence" within the meaning of the Sentencing Guidelines. See Shuck, 481 F.App'x 600 (rejecting Shuck's "attempt to differentiate two categorically different crimes from this statute, one of which is a crime of violence ('force and violence') and the other of which is not ('intimidation')"). Nothing in Johnson undermines the Eleventh Circuit's resounding denial of his appel. Bank robbery convictions under only § 2113(a) (those that do not involve an assault or the use of a dangerous weapon, as required under ยง 2113(d)), remain enhancement-triggering "crimes of ...


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