United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. Bucklo United States District Judge
David Newton (“Newton”) has filed a motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. For the reasons below, I deny the
24, 2009, Newton pleaded guilty to two counts of bank robbery
under 18 U.S.C. § 2113(a), and one count of using a
firearm in furtherance of a crime of violence under 18 U.S.C.
§ 924(c)(1)(A)(iii). On September 29, 2009, I sentenced
Newton to 100 months' imprisonment on each of the bank
robbery counts (to run concurrently), and a 120-month
sentence on the 924(c)(1)(A)(iii) count (to run consecutively
with the sentences on the bank robbery counts).
presents a two-pronged attack on his sentence for using a
firearm in furtherance of a crime of violence. First, he
argues that the statute's definition of “crime of
violence” is unconstitutionally vague. The relevant
provision is as follows:
(3) For purposes of this subsection the term “crime of
violence” means an offense that is a felony and --
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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).
argues that § 924(c)(3)(B) -- the statute's
so-called “residual clause” -- is
unconstitutionally vague in light of Johnson v. United
States, 135 S.Ct. 2551 (2015), which held that the
similarly-worded provision of the Armed Career Criminal Act,
18 U.S.C. § 924(e)(2)(B), was void for vagueness. Newton
is correct. Indeed, shortly before the briefing on the
instant motion began, the Seventh Circuit expressly held that
§ 924(c)(3)(B) is unconstitutionally vague. See
United States v. Cardena, 842 F.3d 959, 996 (7th Cir.
2016) (“[W]e hold that the residual clause in 18 U.S.C.
§ 924(c)(3)(B) is ...unconstitutionally vague.”);
see also United States v. Anglin, 846 F.3d 954, 964
(7th Cir. 2017).
does not entitle Newton to relief, however, so long as the
requirements of § 924(c)(3)(A) -- the statute's
so-called “elements” or “force”
clause -- are satisfied. Hence, Newton's second argument
is that federal bank robbery -- the predicate offense forming
the basis for his § 924(c)(1)(A)(iii) charge --is not a
“crime of violence” under the elements clause.
This argument is foreclosed by United States v.
Armour, 840 F.3d 904 (7th Cir. 2016). There, the
defendant argued that federal bank robbery was not a crime of
violence under § 924(c)(3)(A) because the offense could
be committed by “force and violence, or by
intimidation.” 18 U.S.C. § 2113(a). The defendant
argued that bank robbery committed solely by intimidation did
not constitute a crime of violence. The Seventh Circuit
rejected this contention, squarely holding that federal bank
robbery has “as an element the use, attempted use, or
threatened use of physical force against the person or
property of another and thus qualif[ies] as [a] crime of
violence under § 924(c).” Id. at 909;
see also Clark v. United States, No. 16-2296, 2017
WL 690754, at *2 (7th Cir. Feb. 21, 2017).
argues that Armour “is inapt and not therefore
binding.” Pet'r's Reply Br. at 6. The gist of
his arguments on this point, which he raises only in his
reply brief, is difficult to discern. He appears to maintain
that Armour was somehow mistaken in using the
so-called “categorical approach” in determining
whether bank robbery is a crime of violence under the
elements clause. However, the precise nature of the alleged
error is unclear. His main complaint appears to be that the
court's opinion did not sufficiently explain its basis
for using the categorical approach.
other hand, Newton argues, somewhat contradictorily, that
Armour is unsound because it failed to address the
question of whether the bank robbery statute is divisible --
i.e., whether it contains separate clauses constituting
distinct offenses -- in which case the court should have used
the “modified categorical approach.” Newton seems
to believe that Armour incorrectly assumed that,
based on the fact that the offense can be committed by
“force and violence, or by intimidation, ” the
bank robbery statute is divisible. Again, Newton fails to
point to anything in the opinion suggesting that the court
believed the statute to be divisible. Indeed, Newton's
contention is belied by the court's use of the
categorical approach, which applies to statutes that are not
events, even if Newton's arguments had merit (and I do
not believe they do), Armour would still be binding
precedent. See, e.g., Union Carbide Corp. v.
Graver Tank & Mfg. Co.,345 F.2d 409, 411 (7th ...