United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION TO VACATE AND
GRANTING DEFENDANT'S MOTION FOR RECONSIDERATION
CHRISTINE M. ARGUELLO, UNITED STATES DISTRICT JUDGE.
This
matter comes before the Court upon Defendant Denis
Volkov's Motion to Vacate Sentence Pursuant to 28 U.S.C.
§ 2255 (“Section 2255”) (Doc. # 154) and his
Motion for Reconsideration of the Court's Order Denying
his Motion to Withdraw as Counsel (Doc. # 197). For the
following reasons, the Court DENIES Mr. Volkov's Motion
to Vacate Sentence Pursuant to Section 2255 (Doc. # 154),
GRANTS his Motion for Reconsideration (Doc. # 197), VACATES
its April 26, 2018 Order Denying the Motion to Withdraw as
Counsel (Doc. # 192), and GRANTS the Motion to Withdraw as
Attorney (Doc. # 190).
I.
BACKGROUND
On
August 20, 2013, Mr. Volkov was charged by indictment with
two counts of armed bank robbery in violation of 18 U.S.C.
§ 2113(a) and (d) and two counts of carrying,
possessing, and brandishing a firearm during and in relation
to and in furtherance of armed bank robbery in violation of
18 U.S.C. § 924(c). On April 23, 2014, Mr. Volkov
pleaded guilty to an information charging one count of
brandishing a firearm during and in retaliation to and
furtherance of a crime of violence as well as aiding and
abetting in the same, in violation of 18 U.S.C. §
924(c)(1)(A) and 18 U.S.C. § 2. (Doc. # 103.) The crime
of violence in which he brandished the firearm was armed bank
robbery. As a result of Mr. Volkov's conviction under
Section 924(c), this Court imposed the statutory mandatory
minimum sentence of imprisonment of seven years (84 months).
See (Doc. # 146.)
On June
20, 2016, Mr. Volkov, represented by the Federal Public
Defender, filed the instant Motion to Vacate Sentence
Pursuant to Section 2255, asserting that he is entitled to
relief under Johnson v. United States, 135 S.Ct.
2551 (2015), because the Supreme Court found the residual
clause of the Armed Career Criminal Act § 924(e)(2)(B)
to be unconstitutionally vague. Mr. Volkov argues that the
unconstitutional residual provision in Johnson is
the same as the residual clause found in Section
924(c)(3)(B). (Doc. # 154.)
First,
Mr. Volkov asserts that aiding and abetting a federal bank
robbery does not qualify as a crime of violence under the
elements clause in Section 924(c)(3)(A). (Id. at 2-
9.) He therefore reasons that his Section 924(c) conviction
is based on that statute's residual clause (Section
924(c)(3)(B)). Second, Mr. Volkov contends that
Johnson invalidates Section 924(c)(3)(B)'s
residual clause as unconstitutionally vague. (Id. at
9- 12.) He therefore asks the Court to vacate his conviction
under Section 924(c). (Id. at 12.)
The
Government responded to Mr. Volkov's Motion to Vacate
Sentence Pursuant to Section 2255 on November 23, 2016. (Doc.
# 179.) Mr. Volkov replied in support of his Motion on
December 24, 2016. (Doc. # 185.)
II.
DEFENDANT'S MOTION TO VACATE
Mr.
Volkov's argument can be summarized as follows:
1. bank robbery is not a “crime of violence” as
that term is defined in 18 U.S.C. § 924(c)(3)(A);
2. thus, his aiding and abetting conviction was necessarily
based on the residual clause contained in Section
924(c)(3)(B);
3. the residual clause was invalidated by the Supreme
Court's 2015 decision in Johnson;
4. therefore, his conviction under the residual clause is
in violation of Johnson v. United States and must
be vacated because it violates his due process rights.
For
purposes of 18 U.S.C. § 924(c)(1), the term “crime
of violence” has two definitions. First, 18 U.S.C.
§ 924(c)(3)(A)- the “elements”
clause-includes in the definition any felony that “has
as an element the use, attempted use, or threatened use of
physical force against the person or property of
another.” Second, 18 U.S.C. § 924(c)(3)(B)-the
“residual clause” clause-includes in the
definition any felony “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.” United States v. Wade, 719
Fed.Appx. 822, 825-26 (10th Cir. 2017).
As an
initial matter, the Court addresses Mr. Volkov's argument
that “aiding and abetting” an armed bank robbery
does not qualify as a violent felony predicate offense to his
Section 924(c)(1)(A) conviction. 18 U.S.C. § 2 provides,
“whoever commits an offense against the United States
or aids, [or] abets . . . is punishable as a
principal.”
“To
be liable for aiding and abetting, a defendant must (1)
willfully associate himself with the criminal venture, and
(2) seek to make the venture succeed through some action of
his own.” United States v. Bowen, 527 F.3d
1065, 1078 (10th Cir. 2008). When Mr. Volkov pleaded guilty
to both armed robbery and aiding and abetting, he admitted
that (1) he intentionally committed the crime of armed bank
robbery, and (2) he used or carried a firearm during and in
relation to the bank robbery. (Doc. # 103 at 1-5.) Therefore,
Mr. Volkov is punishable as though he had committed the armed
robbery himself.
Next,
the Court addresses whether armed bank robbery is a predicate
offense. Mr. Volkov's argument fails in light of the
Tenth Circuit's recent decisions. Of chief importance is
the Tenth Circuit's holding in United States v.
Ontiveros, 875 F.3d 533 (10th Cir. 2017) (overruling
United States v. Rodriguez-Enriquez, 518 F.3d 1191,
1194 (10th Cir. 2008)). Ontiveros held that any
offense that requires a defendant to cause, attempt to cause,
or threaten to cause physical pain or injury qualifies as a
violent felony predicate offense. 875 F.3d at 538. The
assumption on which Mr. Volkov's argument rests-that the
elements clause of Section 924(c) does not apply to his
predicate offense of armed bank robbery-is without merit
subsequent to Ontiveros. See United States v.
Higley, 726 Fed.Appx. 715, 717 (10th Cir. ...