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 Gregg
Labadie's Motion to Vacate Sentence Pursuant to 28 U.S.C.
§ 2255 (“Section 2255”) (Doc. # 27) and his
Motion for Reconsideration of the Court's Order Denying
his Motion to Withdraw as Counsel (Doc. # 36). For the
following reasons, the Court DENIES Mr. Labadie's Motion
to Vacate Sentence Pursuant to Section 2255 (Doc. # 27),
GRANTS his Motion for Reconsideration (Doc. # 36), VACATES
its April 26, 2018 Order Denying the Motion to Withdraw as
Counsel (Doc. # 35), and GRANTS the Motion to Withdraw as
Attorney (Doc. # 34).
I.
BACKGROUND
On July
7, 2010, Mr. Labadie pleaded guilty to one count of armed
bank robbery, in violation of 18 U.S.C. § 2113, and one
count of brandishing a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii),
where the crime of violence was the aforementioned armed bank
robbery. (Doc. # 15 at 2-3.) As a result of Mr. Labadie's
conviction under Section 924(c), for brandishing a firearm
during a crime of violence, this Court imposed the statutory
mandatory minimum sentence of imprisonment of seven years (84
months). See (Doc. # 25.) Mr. Labadie was therefore
sentenced to a total term of 117 months. (Id.)
On June
20, 2016, Mr. Labadie, 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), in which the Supreme Court found the residual
clause of the Armed Career Criminal Act to be
unconstitutionally vague. (Doc. # 27.) The Armed Career
Criminal Act required a sentencing increase where a defendant
had three prior drug crimes or violent felonies, and its
residual clause defined “violent felony” to
include any offense that “involves conduct that
presents a serious potential risk of physical injury to
another.” 18 U.S.C. § 924(e)(2)(B). Mr. Labadie
argues that the unconstitutional residual clause at issue in
Johnson is the same as the residual clause found in
Section 924(c)(3)(B). (Doc. # 27.)
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-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).
First,
Mr. Labadie asserts that federal bank robbery does not
qualify as a crime of violence under the elements clause in
Section 924(c)(3)(A). (Id. at 2-8.) He therefore
reasons that his Section 924(c) conviction is based on that
statute's residual clause (Section 924(c)(3)(B)). Second,
Mr. Labadie contends that Johnson invalidates
Section 924(c)(3)(B)'s residual clause as
unconstitutionally vague. (Id. at 8-11.) He
therefore asks the Court to vacate his conviction under
Section 924(c). (Id. at 11.)
The
Government responded to Mr. Labadie's Motion to Vacate
Sentence Pursuant to Section 2255 on August 30, 2016. (Doc. #
30.) Mr. Labadie replied in support of his Motion on
September 29, 2016. (Doc. # 31.)
II.
DEFENDANT'S MOTION TO VACATE
Mr.
Labadie's argument can be summarized as follows:
1. Armed bank robbery is not a “crime of
violence” as that term is defined in the elements
clause in Section 924(c)(3)(A);
2. Thus, his conviction for brandishing a firearm in
furtherance of a crime of violence 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; and
4. Therefore, his conviction under the residual clause is in
violation of Johnson and must be vacated because it
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