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United States v. Bowen

United States District Court, D. Colorado

January 12, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
4. Aaron Bowen, Defendant-Movant. Criminal Action No. 05-cr-00425

          ORDER DENYING § 2255 MOTION TO VACATE

          Robert E. Blackburn, United States District Judge

         This matter is before me on the 28 U.S.C. § 2255 Motion To Vacate Sentence [#611][1] 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.

         I. STANDARD OF REVIEW

         Under 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.

         II. BACKGROUND

         A jury 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 Cir. 2008).

         In his 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 violence.

         Section 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 another, or
(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.

         Mr. 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).

         Second, 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 vacated.

         In 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 ...


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