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United States v. Robbins

United States District Court, E.D. Louisiana

December 5, 2017

UNITED STATES
v.
JON RENE ROBBINS

         SECTION “R”

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE

         Before the Court is Defendant Jon Rene Robbins's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.[1] For the following reasons, the Court denies the motion.

         I. BACKGROUND

         On June 16, 2004, Robbins pleaded guilty without a plea agreement to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a).[2] At sentencing, Robbins received a career offender sentencing enhancement under § 4B1.1 of the Sentencing Guidelines because he had at least two prior felony convictions for crimes of violence, including a federal conviction for armed robbery and a state conviction for first degree robbery.[3] See U.S.S.G. § 4B1.1(a) (Nov. 2003). Robbins's resulting guidelines range was 151 to 188 months imprisonment.[4] At the time of Robbins's conviction and sentencing, the Sentencing Guidelines were mandatory and binding. See United States v. Booker, 543 U.S. 220, 233 (2005). The Court sentenced Robbins to 180 months imprisonment as to each count, to be served concurrently.[5]

         Robbins did not file a direct appeal of his conviction or sentence. Robbins now asks the Court to vacate, set aside, or correct his sentence.[6]

         II. DISCUSSION

         Robbins argues that his sentence should be set aside in light of Johnson v. United States, 135 S.Ct. 2551 (2015).[7] The Supreme Court in Johnson held that the “residual clause” of the definition of “violent felony” in the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Id. at 2557. Robbins contends that he was classified as a career offender because of an identically worded residual clause in § 4B1.2(a) of the then-mandatory sentencing guidelines.[8] The Court assumes without deciding that Robbins's motion is timely under 28 U.S.C. § 2255(f)(3) and is not procedurally defaulted, but finds that his motion must be denied because Robbins was not sentenced under the residual clause of § 4B1.2(a).

         The ACCA and § 4B1.2(a) of the 2003 Sentencing Guidelines use nearly identical language to define a “violent felony” and a “crime of violence, ” respectively.[9] Under the 2003 version of § 4B1.2(a), a crime of violence means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         The Supreme Court in Johnson invalidated only the residual clause of the ACCA, which is the portion of the definition that states: “or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 135 S.Ct. at 2556-57. Johnson does not call into question the validity of the force clause of the ACCA, which defines as a violent felony a crime that “has as an element the use, attempted use or threatened use of physical force against the person of another.” See id at 2557. (distinguishing the residual clause from the force clause).

         Robbins's prior convictions for federal bank robbery and first degree robbery under Louisiana law each qualify as crimes of violence under the force clause of § 4B1.2(a)(1). The residual clause is therefore irrelevant to Robbins's case. The Fifth Circuit recently held that federal bank robbery is a crime of violence under § 4B1.2(a)(1). See United States v. Brewer, 848 F.3d 711, 716 (5th Cir. 2017). Robbins does not contest that his bank robbery conviction qualifies as a crime of violence.

         Robbins instead argues that his first degree robbery conviction is not a crime of violence under the force clause.[10] In Louisiana, first degree robbery “is the taking of anything of value belonging to another from the person of another, or that is in the immediate control of another, by use of force or intimidation, when the offender leads the victim to reasonably believe he is armed with a dangerous weapon.” La. R.S. 14:64.1. The Fifth Circuit has held that the Louisiana crime of simple robbery entails the use or threatened use of force. See United States v. Brown, 437 F.3d 450, 452-53 (5th Cir. 2006) (holding that simple robbery qualifies as a violent felony under the ACCA as a matter of law). Under Louisiana law, first degree robbery and simple robbery have the same elements, except that first degree robbery contains the additional requirement that the offender lead the victim to ...


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