United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION TO VACATE
E. Blackburn, United States District Judge
matter is before me on the 28 U.S.C. § 2255 Motion To
Vacate Sentence [#611] filed May 14, 2016. The government filed
an answer [#614], and the defendant filed a reply [#622]. In
addition, the government filed a notice of supplemental
authority [#630]. I deny the motion.
STANDARD OF REVIEW
28 U.S.C. § 2255(a), a federal prisoner claiming the
right to be released on the ground that his federal sentence
“was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack, ” may move to
have his sentence vacated, set aside, or corrected.
convicted the defendant, Aaron Bowen, of (1) retaliation
against a witness; (2) conspiracy to retaliate against a
witness; and (3) brandishing of a firearm in furtherance of a
crime of a crime of violence. Amended Judgment
[#474]. Mr. Bowen was found guilty of the brandishing offense
in relation to both the retaliation against a witness
conviction and the conspiracy to retaliate conviction. He was
sentenced to 77 months in prison for the first two crimes.
The brandishing offense resulted in a sentence enhancement of
an additional, consecutive 84 months under 18 U.S.C. §
924(c). His convictions were affirmed on direct appeal.
United States v. Bowen, 527 F.3d 1065, 1080 (10th
present motion, Mr. Bowen challenges the sentence enhancement
based on his brandishing of a firearm in furtherance of a
crime of violence. This sentence enhancement is defined by 18
U.S.C. § 924(c)(1)(A)(ii). This particular subsection
provides for a sentence enhancement when, during and in
relation to a crime of violence, the defendant brandishes a
firearm. For Mr. Bowen to be subject to a sentence
enhancement under this portion of § 924(c), at least one
predicate offense must have been a “crime of
violence.” Here, the predicate offenses were
retaliation against a witness and conspiracy to retaliate
against a witness. A sentence for a § 924(c) offense
must be “in addition to, ” meaning consecutive
to, the punishment provided for the underlying crime of
924(c) defines the term “crime of violence” as an
offense that is a felony and that -
(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). I will refer to paragraph (A) as
the elements clause and paragraph (B) as the risk of force
clause. Both witness retaliation and conspiracy to retaliate
against a witness are felonies.
Bowen asserts that his sentence enhancement under §
924(c)(1)(A)(ii) must be vacated. He makes two arguments to
support of this contention. First, Mr. Bowen contends that
neither of the two predicate offenses, retaliation against a
witness and conspiracy to retaliate against a witness, fits
the definition of a crime of violence under the physical
force clause § 924(c)(3)(A). If that is true, then the
two predicate offenses may be considered crimes of violence
only if they fit the definition under the risk of force
clause, § 924(c)(3)(B).
Mr. Bowen contends that the risk of force clause now is
invalid because it is void for vagueness. This argument is
based on the ruling of the Supreme Court of the United States
that a somewhat similar provision in the Armed Career
Criminal Act (ACCA) is unconstitutionally vague. See
Johnson v. U.S., __U.S.__, __, 135 S.Ct. 2551, 2563
(2015). If neither of his predicate crimes fit the definition
of a crime of violence stated in § 924(c)(3)(A) and if
§ 924(c)(3)(B) is void under Johnson, then, Mr.
Bowen asserts, his § 924(c) sentence enhancement must be
response, the government contends the motion was not filed
within the one year period of limitation provided in §
2255(f). Generally, that one year period begins to run on the
date the conviction in question became final. The convictions
of Mr. Bowen became final when the Supreme Court denied his
petition for certiorari on October 6, 2008. Bowen v.
U.S., 555 U.S. 930 ...