United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper, United States District Judge
Rafael Beamud, Jr. (“Beamud”) has moved to vacate
his conviction for one count of possession of a firearm in
furtherance of a crime of violence and correct his sentence
pursuant to 28 U.S.C. § 2255 on the basis that this
conviction is no longer permissible under Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551 (2015)
(“Johnson II”). D. 85. Having considered
this motion and having heard oral argument, the Court DENIES
Beamud's petition to vacate his conviction and correct
his sentence, D. 85.
Standard of Review
28 U.S.C. § 2255, the Court may vacate and correct a
petitioner's sentence if such “sentence (1) was
imposed in violation of the Constitution, or (2) was imposed
by a court that lacked jurisdiction, or (3) exceeded the
statutory maximum, or (4) was otherwise subject to collateral
attack.” David v. United States, 134 F.3d 470,
474 (1st Cir. 1998). The petitioner bears the burden of
demonstrating that there is cause for relief under §
Factual and Procedural Background
November 19, 2013, a federal grand jury indicted Beamud for
armed bank robbery in violation of 18 U.S.C. § 2113(a)
and (d) and one count of possession of a firearm in
furtherance of a crime of violence in violation of 18 U.S.C.
§ 924(c)(1)(A). D. 10 at 1-2. On March 26, 2015, Beamud
waived indictment and pled guilty to a seven-count
superseding information charging him with six counts of armed
bank robbery in violation of § 2113(a) and (d) (Counts I
through VI) and one count of possession of a firearm in
furtherance of a crime of violence in violation of §
924(c)(1)(A) (Count VII). D. 59-62.
18, 2015, the Court accepted Beamud's plea and sentenced
him to 141 months. D. 69; D. 71 at 3. Beamud's sentence
consisted of a term of 57 months for Counts I through VI, to
be served concurrently, and a term of 84 months for Count VII
to be served consecutively to the terms imposed for Counts I
through VI. D. 69; D. 71 at 3. Beamud has now moved to vacate
his sentence under 28 U.S.C. § 2255. D. 85; see
The Impact of Johnson II on the Residual Clause in §
circuit and district courts are split as to whether
Johnson II applies with equal force to the residual
clause in 18 U.S.C. § 924(c)(3)(B). Compare United
States v. Armour, 840 F.3d 904, 908 (7th Cir. 2016)
(assuming that Johnson II applies to §
924(c)(3)(B)), and United States v. Herr, No.
16-cr-10038-IT, 2016 WL 6090714, at *1-3 (D. Mass. Oct. 18,
2016) (concluding that the residual clause in §
924(c)(3)(B) is void under Johnson II), with
United States v. Hill, 832 F.3d 135, 146 (2d Cir. 2016)
(concluding that § 924(c)(3)(B) is not void under
Johnson II because § 924(c)(3) “does not
involve the double-layered uncertainty present in Johnson
II”), and United States v. Prickett, 839
F.3d 697, 699-700 (8th Cir. 2016) (concluding that §
924(c)(3)(B) is not void under Johnson II). The
First Circuit has not yet addressed this question. See
United States v. Taylor, 848 F.3d 476, 491 (1st
Cir. 2017) (declining to resolve whether the § 924(c)(3)
residual clause is unconstitutionally vague). Assuming
without deciding that Johnson II applies to the
residual clause of § 924(c)(3)(B), the Court turns to
whether a federal bank robbery constitutes a crime of
violence under § 924(c)(3)(A), the force clause.
Armed Bank Robbery in Violation of § 2113(a) and (d)
Constitutes a Crime of Violence Under the Force Clause of
The Categorical Approach
determining whether an offense qualifies as a crime of
violence, the Court employs the categorical approach.
United States v. Fields, 823 F.3d 20, 33 (1st Cir.
2016). This approach requires the Court to “compare the
statutory elements of the crime for which the defendant was
previously convicted . . . with Congress' definition of
the type of crime that may serve as a predicate
offense[.]” Id. (quoting United States v.
Fish, 758 F.3d 1, 5 (1st Cir. 2014)). In so doing, the
Court takes into account the elements of the statute of
conviction to determine whether the offense constitutes a
crime of violence and must not inquire into the facts
underlying its commission in this particular instance.
United States v. Montoya, 844 F.3d 63, 72 (1st Cir.
2016); United States v. Webb, No. 01-cr-10267-WGY,
2016 WL 6647929, at *6 (D. Mass. Nov. 9, 2016).
statute is indivisible-i.e. when it sets out a single set of
elements to define a single crime-the Court applies the
default categorical approach. See Webb, 2016 WL
6647929, at *6. Here, the Court determines whether the
elements of the criminal conviction “match” the