McCracken v. United States, CV 16-04010 TJH
| Decision Date | 27 July 2017 |
| Docket Number | CV 16-04010 TJH,CR 06-00497-GHK |
| Court | U.S. District Court — Central District of California |
| Parties | QUINTIN ANTHONY MCCRACKEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
The Court has considered Petitioner Quintin Anthony McCracken's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 or, in the alternative, request for a certificate of appealability as to his claim pursuant to 28 U.S.C. § 2253(c)(2), together with the moving and opposing papers.
Petitioner challenges his sentence under 18 U.S.C. § 924(c), which is predicated on armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d).
Section 924(c) defines "crime of violence" under § 924(c)(3)(A) [the "Force Clause"] and § 924(c)(3)(B) [the "Residual Clause"]. This Court held that the Residual Clause is unconstitutionally vague, and that certain convictions — convictions that, under the categorical approach, see Taylor v. United States, 495 U.S. 575 (1990), fall outside the Force Clause because the statutory elements of the conviction include conduct falling outside the Force Clause's definition of a "crime of violence" — must be vacated. See Juan Becerra-Perez v. United States, No. 2:16-cv-07046-TJH (C.D. Cal. Feb. 15, 2017). The Force Clause defines a "crime of violence" as a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another[.]" § 924(c)(3)(A).
Sections 2113 (a) and (d) are crimes of violence under the Force Clause defined in § 924(c)(3)(A). United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000). Since Wright, the Ninth Circuit has reaffirmed that armed bank robbery qualifies as a crime of violence under the Force Clause. United States v. Pritchard, No. 15-50278, 2017 WL 2219005, at *1 (9th Cir. May 18, 2017). Subsection (a) provides for a felony conviction for bank robberies and incidental crimes committed "by force and violence, or by intimidation." 18 U.S.C. § 2113(a) (emphasis added). The Ninth Circuit has defined intimidation under § 2113 to mean "wilfully to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm," which comports with the requirement of a "threatened use of physical force" contained in the Force Clause. United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990).
Similarly, subsection (d) includes "putting in jeopardy the life of any person by the use of a dangerous weapon or device." 18 U.S.C. § 2113(d). As such, even the most innocent conduct penalized under this section would qualify as a crime of violence. See United States v. Watson, No. 14-00751 01 DKW, 2016 WL 866298, at *7 (D. Haw. Mar. 2, 2016). Therefore, both subsections (a) and (d) fall within the definition of a crime of violence under 18 U.S.C. § 924(c)(3)(A). Watson, 2016 WL 866298, at *7. This conclusion is, further, supported by decisions in this Circuit reaching the same result. See, e.g., McFarland v. United States, No. CV 16-7166, 2017 WL 810267, at *4 (C.D. Cal. Mar. 1, 2017); United States v. Salinas, No. 1:08 CR 0338 LJO SKO, 2017 WL 2671059, at *7 (E.D. Cal. June 21, 2017).
A district court may issue a certificate of appealability "only if the applicant hasmade a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Such a showing requires the petitioner to "demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (alterations in original, emphasis omitted). Petitioner has not made a substantial showing of the denial of a constitutional right under any of the above bases.
Accordingly,
It is Ordered that the motion to vacate Petitioner's sentence under 18 U.S.C. § 924(c) be, and hereby is, Denied.
It is Further Ordered that Petitioner's request for a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2) be, and hereby is, Denied.
/s/_________
Terry J. Hatter, Jr.
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