United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Castillo Chief Judge
Martin ("Petitioner") filed a petition to vacate
his sentence under 28 U.S.C, § 2255 based on the U.S.
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). (R. 1.) For the reasons
set forth below, the petition is denied.
2009, Petitioner and his co-defendant, John Gower, were
charged in a two-count indictment with bank robbery in
violation of 18 U.S, C. § 2113(a) (Count One) and using
a firearm in furtherance of a crime of violence in violation
of 18 U.S.C. § 924(c) (Count Two). United States v.
Martin, No, 09 CR 807-2, R. 14. In October 2010,
Petitioner entered a guilty plea to both counts of the
indictment. Id., R. 48. As part of the plea,
Petitioner admitted that he had robbed First National Bank in
South Holland, Illinois, while armed with a 9mm Ruger
handgun. Id. at 2-3. He also admitted that at the
time of the robbery the bank was insured by the Federal
Deposit Insurance Corporation ("FDIC").
Id. at 4. He further admitted that after robbing the
bank, he and Gower led police on a high-speed chase, during
which time he fired four shots from his handgun. Id.
In the plea, Petitioner agreed to waive his trial rights as
well as any arguments for appeal other than issues related to
the validity of his plea and the sentence imposed by the
Court. Id. at 9. In January 2011, the Court
sentenced Petitioner to 90 months on Count One and 120 months
on Count Two, to run consecutively. Id., R. 70.
Petitioner did not appeal.
2016, Petitioner filed the present petition. (R. 1, Pet.) He
claims that his Section 924(c) conviction must be vacated
because the predicate offense for which he was convicted of
using and carrying a firearm in furtherance of-bank
robbery-does not constitute a "crime of violence"
after Johnson. (R. 3, Mem. at 1-6; R. 10, Suppl. at
1-10, ) He separately claims that the indictment in his case
was "jurisdictionally defective" because the FDIC
did not insure First National Bank for losses as a result of
bank robbery, which in his view meant that there was an
insufficient federal connection to his offense. (R. 3, Mem.
at 7-17.) He relatedly claims that his trial counsel was
ineffective because he failed to object to the indictment on
this ground. (Id. at 14-17.) The government responds
that Petitioner has not established an entitlement to relief
under Section 2255. (R. 11, Resp.)
federal prisoner can move to vacate his sentence on "the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States ... or is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
"Relief under this statute is available only in
extraordinary situations, such as an error of constitutional
or jurisdictional magnitude or where a fundamental defect has
occurred which results in a complete miscarriage of
justice." Blake v. United States, 723 F.3d 870,
878-79 (7th Cir. 2013).
first claim, Petitioner argues that his Section 924(c)
conviction must be vacated in light of the Supreme
Court's decision in Johnson, (R. 1, Pet. at 4;
R, 10, Suppl. at 14.) Johnson addressed the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e), which provides enhanced sentences for defendants
convicted of possessing a firearm after a felony conviction
in violation of 18 U.S.C. § 922(g) who have "three
previous convictions by any court... for a violent felony or
a serious drug offense." 18 U.S.C. § 924(e)(1). A
defendant who meets this definition is subject to a mandatory
prison sentence of 15 years to life. Id. The ACCA
defines "violent felony" as "any crime
punishable by imprisonment for a term exceeding one
year" that meets one of the following requirements: (1)
it "has as an element the use, attempted use, or
threatened use of physical force against the person of
another"; (2) it is burglary, arson, extortion, or an
offense involving the use of explosives; or (3) it
"otherwise involves conduct that presents a serious
potential risk of physical injury to another." 18 U.S.C.
§ 924(e)(2)(B)(i)-(ii). The first clause is commonly
referred to as the "elements clause, " the second
as the "enumerated crimes clause, " and the third
as the "residual clause." In Johnson, the
Supreme Court invalidated the ACCA's residual clause as
unduly vague, but left intact the enumerated crimes clause
and the elements clause. See Johnson, 135 S.Ct, at
2563 ("Today's decision does not call into question
application of the [ACCA] to the four enumerated offenses, or
the remainder of the Act's definition of a violent
felony."); Stanley v. United States, 827 F.3d
562, 564 (7th Cir. 2016) (Johnson holds that the
residual clause is unconstitutionally vague. Johnson
does not otherwise affect the operation of the Armed Career
to the ACCA, Section 924(c) contains an elements clause that
defines "crime of violence" as an offense having
"as an element the use, attempted use, or threatened use
of physical force against the person or property of
another." 18 U.S.C. § 924(c)(3)(A). Section 924(c)
also contains a residual clause covering offenses that
"involve  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)(B). Given the similarities between the residual
clauses contained in the ACCA and Section 924(c), the U.S.
Court of Appeals for the Seventh Circuit has held that the
residual clause in Section 924(c) is void for vagueness in
light of Johnson. United States v. Cardena, 842 F.3d
959, 996 (7th Cir. 2016).
argues that after Johnson, his Section 924(c)
conviction is invalid because bank robbery no longer
constitutes a "crime of violence" due to the
Supreme Court's invalidation of the residual clause. (R.
10, Suppl. at 10-16.) He is correct that the government can
no longer rely on the residual clause to prove that he
committed a crime of violence. But Petitioner's Section
924(c) conviction remains valid if armed bank robbery
constitutes a crime of violence under the elements clause of
Section 924(c), which Johnson did not affect.
See Johnson, 135 S.Ct. at 2563; see also United
States v. Wheeler, 857 F.3d 742, 744 (7th Cir. 2017)
("Neither Cardena nor Johnson has
anything to do with the elements clauses in § 924(c) and
stated above, an offense constitutes a crime of violence
under the elements clause of Section 924(c) if it "has
as an element the use, attempted use, or threatened use of
physical force against the person or property of
another." 18 U.S.C. § 924(c)(3)(A). "Physical
force" in this context means "violent
force-that is, force capable of causing physical pain or
injury to another person." Curtis Johnson v. United
States, 559 U.S. 133, 140-42 (2010) ("Curtis
Johnson"). The federal bank robbery statute
provides in relevant part:
(a) Whoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or presence of
another, or obtains or attempts to obtain by extortion any
property or money or any other thing of value belonging to,
or in the care, custody, control, management, or possession
of, any bank, . . . ...