United States v. Collins

• Decision Date: 11 January 2018
• Docket Number: Case No. 99-cr-00073-SI-1,Case No. 16-cv-03345-SI
• Court: U.S. District Court — Northern District of California
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. ROBERT LEE COLLINS, Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. ROBERT LEE COLLINS, Defendant.

Case No. 99-cr-00073-SI-1

Case No. 16-cv-03345-SI

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

January 11, 2018

ORDER DENYING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND GRANTING A CERTIFICATE OF APPEALABILITY

Re: Dkt. No. 533

Defendant Robert Lee Collins¹ has filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255. For the reasons discussed below, the Court DENIES the motion and GRANTS a certificate of appealability.

BACKGROUND

On August 25, 1999, Collins was charged in a superseding indictment with eleven counts of armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d)² (Counts 1-8, 10-12); two counts of use of a firearm in furtherance of a "crime of violence," i.e., armed bank robbery, in violation of 18 U.S.C. § 924(c) (Counts 9 and 13); one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 14); and one count of conspiracy to commitarmed bank robbery, in violation of 18 U.S.C. § 371 (Count 15). Dkt. No. 533-1, Ex. C. Under the terms of a Rule 11(e)(1)(C)³ plea agreement, Collins agreed to plead guilty to all eleven armed bank robbery counts, one section 924(c) count, and the conspiracy count (Counts 1-12 and 15).⁴ Collins agreed to a total sentence of 300 months. The section 924(c) count to which Collins pled guilty was Count 9, which was predicated on the bank robbery charged in Count 8. The plea agreement also contained a collateral-attack waiver.

Collins' plea agreement states, inter alia,

With respect to each armed bank robbery count, I, (1) knowingly and by force, violence and intimidation, (2) did take from the person and presence of employees and customers of the bank (3) money belonging to and in the care, custody, control, management and possession of the bank, (4) the deposits of which were then and there insured by the Federal Deposit Insurance Corporation, and (5) in committing the offense, I assaulted and put in jeopardy the lives of employees and customers of the bank, by the use of a dangerous weapon, a gun.

Dkt. No. 533-1, Ex. D at 2. With regard to the armed bank robbery charged in Count 8 and the corresponding section 924(c) charge in Count 9, the plea agreement states,

With respect to specific bank robberies, I admit that I committed the armed robbery of the following banks:

. . .

First National Bank, 1551 El Camino Real, Millbrae, California, on or about December 4, 1998, taking approximately $3,839 belonging to and in the care, custody, control and possession of that bank (Counts Eight and Nine). I stipulate for purposes of my plea that the deposits of that bank were insured by the Federal Deposit Insurance Corporation. I robbed the bank and another person drove a getaway car. In committing the robbery, I used a pellet gun which looked like a real gun. I entered the bank in disguise, brandishing my gun and told everyone that it was a bank robbery. I then demanded money from the tellers. Once I was given the money, I made my escape. During and in furtherance of this robbery, while I made my escape, I also carried and possessed a real gun, a .25 caliber Phoenix Arms Raven model semi-automatic pistol. As I made my getaway, I accidentally left the real gun in the first getaway car. Following the robbery, I split the proceeds of this bank robbery with the other person who drove a getaway car.

Id. at 3, 6.

On April 14, 2000, Judge Legge of this Court imposed a total sentence of 300 months,along with restitution, a special assessment, and a term of supervised release. Dkt. No. 218. Although the record does not reflect how Judge Legge apportioned the 300 month sentence across the counts, the written judgment states that Collins was convicted under Count 9 (the section 924(c) count), which carried a mandatory consecutive sentence of 60 months. Dkt. No. 533-1, Ex. A at 1-2.⁵ Collins' current section 2255 motion challenges the 60 month consecutive sentence on the section 924(c) count.

Collins did not file a direct appeal. Collins has, however, filed numerous previous collateral challenges to his conviction and sentence. On March 26, 2002, Collins filed a pro se 28 U.S.C. § 2255 motion raising five claims. Dkt. No. 533-1, Ex. E.⁶ On April 11, 2002, Collins filed a motion to amend his petition, asking to add additional grounds for relief. Dkt. No. 358. On August 12, 2002, this Court⁷ denied Collins' first section 2255 motion as untimely. Dkt. No. 367. In addition, the Court noted that Collins' plea agreement gave up his right to collaterally attack his conviction on any ground other than ineffective assistance of counsel. The Court denied a certificate of appealability, as did the Ninth Circuit. Dkt. Nos. 394, 401.

On June 29, 2005, Collins filed a pro se motion to dismiss his conviction under Federal Rule of Criminal Procedure 12. Dkt. No. 439. The Court denied the motion for lack of jurisdiction, determining that the motion amounted to an unauthorized second or successive section 2255 motion. Dkt. No. 449. On December 20, 2006, Collins filed a pro se motion for relief under Federal Rule of Civil Procedure 60(b). Dkt. No. 480. The Court construed that motion as another unauthorized second or successive section 2255 motion, and denied relief. Dkt.No. 516.

On February 9, 2007, Collins filed a pro se motion requesting that the Court resentence him based upon Amendment 599 to the United States Sentencing Guidelines. Dkt. No. 486. The Court denied the motion as both procedurally barred and substantively without merit. Dkt. No. 489. Collins filed a motion for reconsideration, which this Court denied. Dkt. Nos. 494, 497. The Court denied a certificate of appealability, as did the Ninth Circuit. Dkt. Nos. 501, 506.

On June 21, 2016, Collins, through counsel, filed the instant protective section 2255 motion and a motion with the Ninth Circuit seeking authorization to file a second or successive section 2255 motion. On February 21, 2017, the Ninth Circuit granted the application. Dkt. No. 536. On February 24, 2017, this Court issued an Order to Show Cause directing the United States to respond. Dkt. No. 537. The motion has been fully briefed.

LEGAL STANDARD

A prisoner in custody under sentence of a federal court who wishes to attack collaterally the validity of his conviction or sentence must do so by filing a motion to vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the court which imposed the sentence. 28 U.S.C. § 2255(a). Under 28 U.S.C. § 2255, the federal sentencing court is authorized to grant relief if it concludes that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." See Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). If the court finds that relief is warranted under § 2255, it must "vacate and set the judgment aside" and then do one of four things: "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b); United States v. Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).

DISCUSSION

Collins challenges his 60 month consecutive sentence for his conviction under 18 U.S.C.§ 924(c). Section 924(c) sets out mandatory minimum sentences for defendants who use or carry a firearm "during and in relation to any crime of violence or drug trafficking crime," or who possess a firearm "in furtherance of any such crime." 18 U.S.C. § 924(c)(1)(a). A "crime of violence" is defined as a felony offense that either: "(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3)(A)-(B). Cases addressing section 924(c)(3) refer to subsection (A) as the "force" or "elements" clause and subsection (B) as the "residual" clause.

Collins contends that under the Supreme Court's decision in Johnson v. United States, 576 U.S.___, 135 S. Ct. 2551 (2015) ("Johnson II"), armed bank robbery no longer qualifies as a "crime of violence" under 18 U.S.C. § 924(c). In Johnson II, the Supreme Court held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), is unconstitutionally vague. The ACCA defines a "violent felony" as:

any crime punishable by imprisonment for a term exceeding one year, or any act . . . that- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The portion italicized above is known as the ACCA's "residual clause." The Johnson II Court held that the ACCA's residual clause "fails to give ordinary people fair notice of the conduct it punishes" and "invites arbitrary enforcement," thereby "violat[ing] the first essential of due process." 135 S. Ct. at 2556-57 (citations and internal quotation marks omitted). The requirements of fair notice and enforcement standards "apply not only to statutes defining elements of crimes, but also to statutes fixing sentences." Id. at 2557. For these reasons, Johnson II found that "increasing a defendant's sentence under the [ACCA's residual] clause denies due process of law." Id.

Collins asserts that the residual clause of 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague for the same reasons that the Johnson II court held the residual clause of the ACCA deficient. Collins argues that the ACCA's definition of "violent...