United States District Court, S.D. Georgia, Savannah Division
REPORT AND RECOMMENDATION
convicted for bank robbery in violation of 18 U.S.C. §
2113(a), docs. 54 (plea agreement), 53 (judgment),
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 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.
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).
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.
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).
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
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.
Career-Offender Predicate Offenses
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)). Every other circuit, however, has held
that it does. 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.
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
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).
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 § 2113(d)), remain
enhancement-triggering "crimes of ...