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United States v. McGuire

United States Court of Appeals, Tenth Circuit

February 1, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
PATRICK H. McGUIRE, Defendant-Appellant.

         (D.C. Nos. 6:16-CV-01166-JTM and 6:92-CR-10096-JTM-1) (D. Kan.)

          Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.

          ORDER DENYING CERTIFICATE OF APPEALABILITY [*]

          CARLOS F. LUCERO CIRCUIT JUDGE.

         Patrick 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.

         I

         Following 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.

         McGuire 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.[1]

         II

         A 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).

         In his 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.

         Even 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, [2] 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 unconstitutionally vague).

         As the 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.[3] Because § 2113(a) is divisible, [4] 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 ...


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