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 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
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