Nos. 6:16-CV-01166-JTM and 6:92-CR-10096-JTM-1) (D. Kan.)
LUCERO, MATHESON, and BACHARACH, Circuit Judges.
ORDER DENYING CERTIFICATE OF APPEALABILITY
F. LUCERO CIRCUIT JUDGE.
McGuire seeks a certificate of appealability
("COA") to appeal the district court's
dismissal of his 28 U.S.C. § 2255 motion. We deny a COA
and dismiss the appeal.
a jury trial in 1993, McGuire was convicted of aiding and
abetting an armed bank robbery. He was acquitted on
additional charges of carrying a firearm during and in
relation to a crime of violence and being a felon in
possession of a firearm. The presentence investigation report
("PSR") recommended a sentence enhancement under
U.S.S.G. § 4B1.1(B), based on findings that McGuire was
at least eighteen years old at the time of his offense, he
had two prior felony convictions involving crimes of
violence, and his instant offense qualified as a crime of
violence under the Guidelines. The district court adopted the
findings and recommendations in the PSR and sentenced McGuire
to 25 years' imprisonment.
filed his § 2255 motion in district court on May 31,
2016, arguing that his sentence should be vacated under
Johnson v. United States, 135 S.Ct. 2551 (2015). The
district court denied relief, holding that McGuire had
erroneously asserted he was convicted of carrying a firearm
during and in relation to a crime of violence under 18 U.S.C.
§ 924(c). The court further concluded that even if it
construed McGuire's motion as challenging his sentence
enhancement under the Guidelines' career offender
provisions, his bank robbery conviction constituted a crime
of violence without reliance on the unconstitutional
"residual clause" of U.S.S.G. § 4B1.2(1)(ii)
(1989). The court declined to issue a COA, which McGuire now
seeks from this court.
movant may not appeal the denial of habeas relief under 28
U.S.C. § 2255 without a COA. § 2253(c)(1)(B). A COA
will issue "only if the applicant has made a substantial
showing of the denial of a constitutional right." §
2253(c)(2). A movant meets this standard by demonstrating
"that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further." Slack v. McDaniel, 529 U.S. 473, 484
(2000) (quotations omitted).
application to this court, McGuire asserts that he was
convicted of carrying a firearm during and in relation to a
crime of violence under § 924(c), and that this
conviction must be vacated in light of Johnson. But
as the district court correctly noted, McGuire was not
convicted of that charge. Accordingly, he has not stated a
claim for relief.
construing McGuire's application liberally to assert that
his sentence for the bank robbery conviction was
unconstitutionally enhanced based on a finding that federal
bank robbery constitutes a "crime of violence"
under § 4B1.1,  we conclude he has not made a substantial
showing of the denial of a constitutional right. At the time
of McGuire's conviction, § 4B1.2 defined a
"crime of violence" as
any offense under federal or state law punishable by
imprisonment for a term exceeding one year that (i) has as an
element the use, attempted use, or threatened use of physical
force against the person of another, or (ii) 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.
(emphasis added). The second clause of subsection (ii) is
identical to § 924's residual clause, which was held
unconstitutionally vague in Johnson. Accordingly, if
McGuire's sentence was enhanced under that provision, he
could be entitled to relief. See United States v.
Madrid, 805 F.3d 1204, 1211 (10th Cir. 2015) (holding
that the residual clause of § 4B1.2 is
district court concluded, however, McGuire's federal bank
robbery conviction qualifies as a predicate offense under the
elements clause of § 4B1.2(1)(i) because it contains, as
an element, the use or threatened use of force. Because §
2113(a) is divisible,  we apply the modified categorical approach
to determine which elements of the statute formed the basis
of McGuire's conviction. SeeDescamps v.
United States, 133 S.Ct. 2276, 2281 (2013) (stating that
courts presented with a statute that "sets out one or
more elements of the offense in the alternative" may
look to certain types of documents, such as indictments and
jury instructions, "to determine which alternative
formed the basis of the defendant's prior
conviction"). Review of the indictment and jury
instructions from McGuire's criminal trial reveals ...