United States District Court, E.D. Michigan, Southern Division
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION
TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 (Doc.
COHN UNITED STATES DISTRICT JUDGE
a criminal case. In 2009, defendant was convicted of two
counts of bank robbery, in violation of 18 U.S.C. §
2113(a). Because defendant had two prior state
convictions for bank robbery, he was considered a career
offender under U.S.S.G. §4B1.1 on the grounds his prior
convictions constitute “crimes of violence” under
U.S.S.G. § 4B1.2(a). He was sentenced to 151 months
the Court is defendant's motion to vacate under 28 U.S.C.
§ 2255 (Doc. 73). Defendant raises two arguments: (1) the
federal bank robbery statute cannot qualify as a violent
felony and (2) that under Johnson v. United States,
135 S.Ct. 2551 (2015) his prior convictions for bank robbery
are no longer “crimes of violence” under U.S.S.G.
reasons that follow, the motion is DENIED.
28 U.S.C. § 2255provides:
“A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States,
... or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to
vacate, set aside or correct the sentence.”
prevail under § 2255, defendant must show a
“fundamental defect which inherently results in a
complete miscarriage of justice.” U.S. v.
Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v.
U.S., 368 U.S. 424, 428 (1962)).
primarily seeks relief under based on the new, retroactively
applicable right recognized by the Supreme Court in
Johnson v. United States, 135 S.Ct. 2551 (2015). In
Johnson, 135 S.Ct. 2551 (2015), the Court held that
the residual clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(2)(B)(ii), which defines the term
“violent felony” to include an offense that
“involves conduct that presents a serious potential
risk of physical injury to another, ” is
unconstitutionally vague. In Welch v. United States,
136 S.Ct. 1257 (2016), the Supreme Court held that Johnson
announced a substantive rule of constitutional law that
applies retroactively to ACCA cases on collateral review.
defendant's challenges his career offender designation
under the sentencing guidelines based on Johnson,
i.e. vagueness, fails. The Supreme Court has recently held
that the sentencing guidelines are “not amenable to
vagueness challenges.” Beckles v. United
States, 137 S.Ct. 886, 894 (2017). As a result, the
Johnson decision does not provide a basis ...