Collier v. United States, Docket No. 17-2402

• Decision Date: 01 March 2021
• Docket Number: August Term, 2017,Docket No. 17-2402
• Citation: 989 F.3d 212
• Parties: Keith COLLIER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

989 F.3d 212

Keith COLLIER, Petitioner-Appellant,

v.UNITED STATES of America, Respondent-Appellee.

Docket No. 17-2402

August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: May 9, 2018

Decided: March 1, 2021

Last submissions: August 2019

James P. Egan, Assistant Federal Public Defender, for Lisa A. Peebles, Federal Public Defender for the Northern District of New York, Syracuse, NY, for Petitioner-Appellant Keith Collier.

Steven D. Clymer (Nicolas Commandeur, on the brief), Assistant United States Attorneys, for Antoinette T. Bacon, Acting United States Attorney for the Northern District of New York, Syracuse, NY, for Respondent-Appellee United States of America.

Before: Carney, Circuit Judge,^* and Koeltl, District Judge.^†

Carney, Circuit Judge:

Keith Collier appeals from a 2017 decision and order of the United States District Court for the Northern District of New York (McAvoy, J. ) denying his motion under 28 U.S.C. § 2255. In 2016, Collier sought vacatur of his 1997 conviction for "[u]sing or carrying a firearm during the commission of a crime of violence" in violation of 18 U.S.C. § 924(c)(1). J.A. 14, 20, 23.¹ In 1997, a jury also found him guilty of the "crime of violence" of "attempted [federal bank] robbery by force, violence or intimidation" in violation of 18 U.S.C. § 2113(a), and several other counts. J.A. 23-24. Applying the then-mandatory United States Sentencing Guidelines ("U.S.S.G" or "Guidelines") (1997), the district court sentenced Collier primarily to a term of 270 months’ incarceration. A significant portion of his sentence stemmed from the district court's determination that his conviction for attempted federal bank robbery, combined with his prior New York state convictions for attempted second-degree robbery and second-degree robbery, rendered him a career offender under § 4B1.1 of the governing version of the Guidelines.²

We have held decision on this matter pending resolution of closely related issues presented by other appeals in our Court.³ Those decisions have now been issued and the parties have filed supplemental briefing addressing the decisions’ impact on Collier's case.

On appeal, Collier challenges both his conviction under 18 U.S.C. § 924(c)(1) and his sentence under U.S.S.G. § 4B1.1. He contends primarily that attempted federal bank robbery under 18 U.S.C. § 2113(a) is not categorically a "crime of violence" under either § 924(c) or the Guidelines and therefore that both his conviction and his sentence are invalid. Relatedly, Collier submits that attempted federal bank robbery, attempted second degree New York bank robbery, and second-degree New York bank robbery are not "crimes of violence" under U.S.S.G. § 4B1.2. If he is correct as to any one of those arguments, his sentence is invalid. The Government opposes these arguments and submits in addition that Collier's motion is untimely under 28 U.S.C. § 2255(f)(3) as to all of the arguments that he presents.

In light of the rapid development of the law in this field, we will treat Collier's petition is timely as to his primary argument, that attempted federal bank robbery is not a crime of violence under § 924(c)(3)(A) (the "force clause"). So assuming, we reject Collier's merits argument and hold that attempted federal bank robbery in violation of 18 U.S.C. § 2113(a) is by its terms a crime of violence under § 924(c)(3)(A). See United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019) (holding federal bank robbery in violation of § 2113(a) is a crime of violence under § 924(c)(3)(A) ), cert. denied , ––– U.S. ––––, 140 S. Ct. 870, 205 L.Ed.2d 502 (2020). Our decision rests on the force clause of § 924(c) ’s definition of "crime of violence" and the text of the attempt crime that is set forth in § 2113(a), which expressly requires that the attempted taking—like the completed crime—be perpetrated "by force and violence, or by intimidation." 18 U.S.C. § 2113(a).

Finally, in light of our recent decision in Nunez v. United States , 954 F.3d 465, 471 (2d Cir. 2020), we find untimely and decline to reach the merits of Collier's additional arguments related to his sentencing under U.S.S.G. § 4B1.2 (that is, his vagueness challenge and his arguments with regard to whether his New York robbery and attempted robbery convictions are crimes of violence under the Guidelines’ career offender provision). In Nunez , we held that the Supreme Court in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) "did not recognize a constitutional right not to be sentenced under the residual clause of the pre-Booker Career Offender Guideline." Id . at 471. Collier's petition is therefore untimely insofar as it challenges his sentence under that pre-Booker Guideline: the right he now asserts has not yet been recognized by the Supreme Court. No decision newly announced and now made retroactive excuses him from meeting the one-year time limitation set out in 28 U.S.C. § 2255(f).

Accordingly, we AFFIRM the order of the district court.

BACKGROUND⁴

In October 1997, a federal jury sitting in the United States District Court for the Northern District of New York convicted Collier of federal criminal charges related to his role in the attempted bank robbery of a federal credit union in Rotterdam, New York, that took place in July of that year.⁵ The jury found Collier guilty of five counts: (1) conspiracy to commit bank robbery by force, violence or intimidation, in violation of 18 U.S.C. §§ 2113(a) and 371 ; (2) attempted bank robbery by force, violence, or intimidation, in violation of 18 U.S.C. § 2113(a) ; (3) using or carrying a firearm during the commission of a crime of violence, namely attempted bank robbery in violation of § 2113(a), in violation of 18 U.S.C. § 924(c)(1) ; (4) possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2) ; and (5) possession and receipt of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1).

In May 1998, the district court sentenced Collier to 270 months’ incarceration, to be followed by a three-year term of supervised release. Of his 270 months’ incarceratory sentence, his conviction on Count 3 (possession of a firearm during a crime of violence) required the court to impose a term of 60 months’ imprisonment consecutive to the 210 months’ imprisonment imposed for the remaining counts. In addition, Collier's sentence for the remaining counts was increased based on the court's determination that his criminal history made him a "career offender" covered by § 4B1.1 of the Guidelines.

Collier's criminal history was set out in his Presentence Investigation Report (PSR). The PSR informed the court that, in separate incidents that took place in 1989, Collier pleaded guilty to attempted second-degree robbery (under New York Penal Law §§ 160.10 and 110.00 ) and second-degree robbery (under New York Penal Law § 160.10 ). Added to the instant conviction for attempted federal bank robbery, the two state convictions required the court to apply the Guidelines’ career offender enhancement.

In June 2016, almost twenty years after his original sentencing and while still incarcerated, Collier moved the district court under 28 U.S.C. § 2255 (for a third time) to vacate his conviction and sentence. His 2016 motion was premised on the cascade of legal developments that followed the Supreme Court's decision in Johnson v. United States , 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson , the Court nullified as unconstitutionally vague the "residual clause" of 18 U.S.C. § 924(e)(2)(B). 576 U.S. at 597, 135 S.Ct. 2551. That clause, 18 U.S.C. § 924(e)(2)(B)(ii), had called on courts to deem an offense a "violent felony" if it "involve[d] conduct that present[ed] a serious potential risk of physical injury to another." Id . at 594, 135 S.Ct. 2551.⁶ That determination would then trigger significant sentencing enhancements. A similar amplifier effect was caused by § 4B1.2(a)(2) of the Guidelines, which contained a parallel catch-all clause. In his § 2255 motion, Collier argued principally that, under Johnson , his conviction and sentence were flawed because in determining both, the court relied on those now-questionable clauses. In July 2017, the district court denied Collier's motion, but inviting our review, it issued Collier a certificate of appealability with respect to the question "whether the mandatory Guidelines are subject to a void-for-vagueness challenge." See 28 U.S.C. § 2253.

To preserve order and consistency in our decisions and noting that the end date of Collier's term of incarceration no longer depended upon our resolution of his appeal, we held this matter after hearing oral argument, awaiting final disposition of related appeals in our Court, as the law post- Johnson continued to evolve.⁷ The Supreme Court ruled in Beckles v. United States , ––– U.S. ––––, 137 S. Ct. 886, 890, 197 L.Ed.2d 145 (2017), that the Guidelines, as applied in the post-Booker advisory regime, are not subject to vagueness challenges, including those based on the residual clause of § 924(e) invalidated by Johnson . The question whether crimes previously seen as covered by the now-invalid residual clause were covered nonetheless by the "force clause" of § 924(e)(2)(B)(i) were litigated one by one, as were questions of the Guidelines’ application.⁸ Accordingly, we directed Collier and the government to provide their respective views about the applicability to Collier's case of this Court's related decision in United States v. Hill , 890 F.3d 51 (2d Cir. 2018), and the then-pending decisions in United States v. Davis , ––– U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), United States v. Moore , 916 F.3d 231 (2d Cir. 2019), and Hendricks , 921 F.3d 320. We also received no fewer than six pertinent submissions under Fed. R. App. P. 28(j), giving notice of related opinions.

Those cases in our Circuit are now resolved. See Hendricks ...