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United States v. Beamud

United States District Court, D. Massachusetts

August 2, 2017

UNITED STATES OF AMERICA,
v.
RAFAEL BEAMUD, JR., Petitioner.

          MEMORANDUM AND ORDER

          Denise J. Casper, United States District Judge

         I. Introduction

         Petitioner 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.

         II. Standard of Review

         Under 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 § 2255. Id.

         III. Factual and Procedural Background

         On 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.

         On June 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 D. 96.

         IV. Discussion

         A. The Impact of Johnson II on the Residual Clause in § 924(c)(3)(B)

         Federal 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.

         B. Armed Bank Robbery in Violation of § 2113(a) and (d) Constitutes a Crime of Violence Under the Force Clause of § 924(c)(3)(A)

         1. The Categorical Approach

         When 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).

         If a 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 ...


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