United States District Court, D. Alaska
ORDER AND OPINION [RE: MOTION AT DOCKET 111]
W. SEDWICK SENIOR JUDGE
docket 111, defendant Christopher Charles
(“Charles”) filed a motion pursuant to 28 U.S.C.
§ 2255 seeking relief from the judgment at docket 84.
The court reviewed the motion and directed Charles to further
explain his position. Charles responded with additional
briefing at docket 113. The United States opposed the motion
at docket 116.
a jury convicted Charles on two charges: armed robbery of a
financial institution in violation of 18 U.S.C. §§
2113(a) and 2113(d), and brandishing a firearm during and in
relation to a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A)(ii). Thereafter, the court sentenced
Charles to 76 months incarceration on the armed robbery
charge and a consecutive 84 months incarceration on the
firearm charge. Charles appealed. In November of 2007, the
Ninth Circuit dismissed the appeal based on Charles'
notice of voluntary dismissal. The matter now pending before
this court is Charles' first § 2255 motion.
gravamen of Charles' motion is that the armed robbery he
committed was not a “crime of violence” as that
term is used in 18 U.S.C. § 924(c)(1)(A). He points to
18 U.S.C. § 924(c)(3)A), which defines a crime of
violence as one which “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another.” Charles then argues
that because 18 U.S.C. § 2113(a) criminalizes the taking
of property from another “by force and violence, or
by intimidation” (emphasis added) it is not a
crime of violence, and thus, the sentence imposed for
brandishing a firearm is unlawful.
motion is untimely. A motion seeking relief under 28 U.S.C.
§ 2255 must be made within one year. Ordinarily, the
year runs from the date when the judgment of conviction
became final. Charles attempts to avoid this problem by
arguing that his motion rests on a right only recently
recognized by the Supreme Court so that his collateral attack
is timely. He cites Johnson v. United
States. There, the Supreme Court held that
imposing an enhanced sentence pursuant to the residual clause
in the Armed Career Criminal Act was a violation of due
process, because the residual clause is unconstitutionally
vague. That case was decided on June 26, 2015, and
Charles' initial filing was on June 22,
2016. However, Charles' sentence was not
enhanced pursuant to the Armed Career Criminal Act. His
sentence was enhanced pursuant to 18 U.S.C. 924(c)(1). It
follows that Charles' § 2255 motion is not timely.
were Charles' motion timely, it would fail on the merits.
The Ninth Circuit has expressly stated that “[a]rmed
bank robbery qualifies as a crime of violence because one of
the elements of the offense is a taking ‘by force and
violence, or by intimidation.'” While the Ninth
Circuit made that statement years before the Supreme Court
decided Johnson, in a 2016 decision the Fourth
Circuit eschewed the proposition that after Johnson,
bank robbery may not be considered a crime of violence,
explaining that intimidation, as used in § 2113(a),
requires the threatened use of physical force.
reasons above, the motion at docket 111 is DENIED.
28 U.S.C. § 2255(f).