United States v. Corey

          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 Devan Corey's Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (“Section 2255”) (Doc. # 40) and his Motion for Reconsideration of the Court's Order Denying his Motion to Withdraw as Counsel (Doc. # 49). For the following reasons, the Court DENIES Mr. Corey's Motion to Vacate Sentence Pursuant to Section 2255 (Doc. # 40), GRANTS his Motion for Reconsideration (Doc. # 49), VACATES its April 26, 2018 Order Denying the Motion to Withdraw as Counsel (Doc. # 48), and GRANTS the Motion to Withdraw as Attorney (Doc. # 47).

         I. BACKGROUND

         On January 16, 2014, Mr. Corey pleaded guilty to two counts: one count of misprision of a felony, ^[1] in violation of 18 U.S.C. § 4, one count of brandishing or discharging a firearm in furtherance of a crime of violence and aiding and abetting in the same, in violation of and 18 U.S.C. § 924(c)(1)(A)(iii), where the crime of violence was armed bank robbery.^[2] (Doc. # 24.) As a result of Mr. Corey's conviction under Section 924(c)(1)(A)(iii) for brandishing or discharging a firearm during a crime of violence as well as aiding and abetting in the same, this Court imposed the statutory mandatory minimum sentence of imprisonment of ten years (120 months). See (Doc. # 38.) Mr. Corey was therefore sentenced to a total term of 156 months for his convictions. (Id.)

         On June 20, 2016, Mr. Corey, 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. # 40.) 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. Corey 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. # 40.)

         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).

         First, Mr. Corey 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. Corey 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. Corey's Motion to Vacate Sentence Pursuant to Section 2255 on August 31, 2016. (Doc. # 43.) Mr. Corey replied in support of his Motion on September 29, 2016. (Doc. # 44.)

         II. DEFENDANT'S MOTION TO VACATE

         Mr. Corey'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 located at Section 924(c)(3)(A);

2. Thus, his conviction for brandishing or discharging a firearm in relation to a crime of violence and aiding and abetting in the same 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 ...