United States District Court, N.D. Georgia, Gainesville Division
RICHARD W. STORY, UNITED STATES DISTRICT JUDGE.
before the Court is the Magistrate Judge's Report and
Recommendation (R&R) recommending that Movant's 28
U.S.C. § 2255 motion to vacate be denied. [Doc. 103].
Petitioner has filed his objections in response to the
R&R. [Doc. 105].
district judge has broad discretion to accept, reject, or
modify a magistrate judge's proposed findings and
recommendations. United States v. Raddatz, 447 U.S.
667, 680 (1980). Pursuant to 28 U.S.C. § 636(b)(1), the
Court reviews any portion of the Report and Recommendation
that is the subject of a proper objection on a de
novo basis and any non-objected portion under a
“clearly erroneous” standard. “Parties
filing objections to a magistrate's report and
recommendation must specifically identify those findings
objected to. Frivolous, conclusive or general objections need
not be considered by the district court.” Marsden
v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988).
discussed in the R&R, this Court accepted Movant's
pleas of guilty to three counts of armed bank robbery (one
committed in the Northern District of Georgia and two
committed in the District of South Carolina), in violation of
18 U.S.C. § 2113(a) and (d), and to possessing a firearm
during one of the South Carolina armed bank robberies, in
violation of 18 U.S.C. § 924(c). Based on those
convictions, this Court sentenced Defendant to 216 months of
incarceration on the Georgia armed bank robbery, to run
concurrently with 216 months on the two South Carolina armed
bank robberies, to be followed by a consecutive 84-month term
of incarceration on the South Carolina § 924(c) offense,
for a total term of imprisonment of 300 months (or 25 years).
[Doc. 52]. The § 924(c) sentence was enhanced based on
the fact that Movant brandished a firearm during and in
relation to a crime of violence. See §
§ 2255 motion, Movant contends that after Johnson v.
United States, 135 S.Ct. 2551 (2015), and Sessions
v. Dimaya, 138 S.Ct. 1204 (2018), his armed robbery
convictions no longer count as a crimes of violence under
§ 924(c) and that his § 924(c) conviction must be
vacated. In Johnson, the Supreme Court held that the
residual clause of the definition of violent felony in the
Armed Career Criminal Act (ACCA), 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague.
Johnson, 135 S.Ct. at 2557-58, 2563. The Court
clarified that it did not call into question the application
of the elements clause and the enumerated crimes clause of
the ACCA's definition of a violent felony. Id.
135 S.Ct. at 2563; see In re Fleur, 824 F.3d 1337,
1339 (11th Cir. 2016). In Sessions, the Court held
that 18 U.S.C. § 16(b), which provides the definition of
“violent felony” as used in the Immigration and
Nationality Act, is unconstitutionally vague. While neither
Johnson nor Sessions apply directly to
Movant's § 924(c) conviction, in the recent case of
United States v. Davis, 139 S.Ct. 2319
(2019)-decided after Movant filed his § 2255 motion-the
Supreme Court held that the residual clause definition of
“crime of violence” under § 924(c)(3)(B) is
unconstitutionally vague. As in Johnson, however,
the Court did not strike down the elements clause of §
924(c)(3)(A). Accordingly, to the degree that
Petitioner's § 924(c) sentence was imposed under the
residual clause, he may be entitled to relief, but if his
sentence was imposed under the elements clause, he is not.
R&R, the Magistrate Judge agreed with the Government that
under In re Hines, 824 F.3d 1334 (11th Cir. 2016),
Movant is clearly not entitled to relief. In Hines,
the Eleventh Circuit held that “a conviction for armed
bank robbery [under 18 U.S.C. § 2113(a) and (d)] clearly
meets the requirement for an underlying felony offense, as
set out in [the elements clause of] § 924(c)(3)(A),
which requires the underlying offense to include as an
element, ‘the use, attempted use, or threatened use of
physical force against the person or property of
another.'” The Magistrate Judge further pointed out
that that the Eleventh Circuit, in In re Pollard,
931 F.3d 1318, 1321 (11th Cir. 2019), reaffirmed
Hines after the Supreme Court issued Davis
and held that Davis did not affect a § 924(c)
conviction when the companion “crime of violence”
was armed bank robbery under 18 U.S.C. § 2113(a) and
(d). Accordingly, the Magistrate Judge concluded, Movant is
not entitled to relief.
objections, Movant contends that he was sentenced under
§ 924(c)'s residual clause and not the elements
clause because the underlying crime was not bank robbery but
“conspiracy to commit bank robbery and aiding and
abetting.” However, the record is clear that with
respect to the South Carolina conviction at issue, Movant
pled guilty to and was convicted of bank robbery under 18
U.S.C. § 2113(a) and (d). [Doc. 82 at 11]. Indeed, the
words “conspiracy, ” “aiding, ” and
“abetting” were never mentioned during
Movant's plea hearing. [Id. passim]. As a
result, Movant's objections are unavailing, and this
Court concludes that the Magistrate Judge is correct.
on the foregoing, the R&R, [Doc. 103], is hereby
ADOPTED as the order of this Court and
Movant's § 2255 motion, [Doc. 92], is
DENIED. This Court further agrees with the
Magistrate Judge that Movant has failed to make “a
substantial showing of the denial of a constitutional right,
” 28 U.S.C. § 2253(c)(2), and a Certificate of
Appealability is DENIED.
Clerk is DIRECTED to close Civil Action