United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. Brimmer, Chief United States District Judge.
Louis Campbell, has filed a Motion to Vacate Sentence [Docket
No. 49] under 28 U.S.C. § 2255 (“§ 2255
motion”). The United States has responded to the §
2255 motion. Docket No. 52. For the reasons discussed below,
the § 2255 motion will be denied.
Campbell pled guilty to one count of aiding and abetting the
use, possession, and brandishing of a firearm during and in
relation to the crime of armed bank robbery, in violation of
18 U.S.C. § 924(c) and 18 U.S.C. § 2. Docket No. 11
at 2; Docket No. 27; Docket No. 46. On June 8, 2012, the
Court sentenced Mr. Cam pbell to an 84-month term of
imprisonment. Docket No. 46 at 2. Mr. Campbell did not file a
20, 2016, Mr. Campbell moved, pursuant to 28 U.S.C. §
2255, to vacate his conviction on the ground that it violates
the Fifth Amendment's Due Process Clause. Docket No. 49
at 1. Mr. Campbell claims that he is entitled to relief under
Johnson v. United States, 135 S.Ct. 2551 (2015)
(“Johnson”), because his § 924(c)
conviction was based on that statute's residual clause.
Docket No. 49 at 1.
Campbell argues that the predicate crime of violence upon
which his § 924(c) conviction was based - aiding and
abetting armed bank robbery under 18 U.S.C. §§
2113(a) and (d) and 18 U.S.C. § 2 - no longer qualifies
as a crime of violence after Johnson because it does
not contain, as an element, the use of violent physical
force. Docket No. 49 at 6-7. Even assuming Mr. Campbell's
§ 2255 motion is timely,  it must be denied on the merits.
The Tenth Circuit has held that a conviction for armed bank
robbery under §§ 2113(a) and (d) categorically
qualifies as “a ‘crime of violence' under the
alternate, elements-based definition in §
924(c)(3)(A).” United States v. Higley, 726
Fed.Appx. 715, 717 (10th Cir. 2018) (unpublished); see
also United States v. Lloyd, 741 Fed.Appx. 570, 573
(10th Cir. 2018) (unpublished) (holding that, because
“bank robbery is a lesser-included offense of §
2113(d) armed bank robbery, armed bank robbery is also a
crime of violence within the meaning of §
924(c)(3)'s elements clause” (internal quotation
marks omitted)); United States v. Deiter, 890 F.3d
1203, 1212 (10th Cir. 2018) (holding that bank robbery by
intimidation under § 2113(a) is a crime of violence);
United States v. McCranie, 889 F.3d 677, 681 (10th
Cir. 2018) (same).
extent Mr. Campbell argues that his conviction is different
because the predicate offense was aiding and abetting an
armed bank robbery, see Docket No. 49 at 4 (arguing
that an aiding and abetting conviction cannot qualify as a
crime of violence under the elements clause), the Tenth
Circuit has squarely rejected an analogous argument in the
context of § 924(e) and held that “it makes sense
to look to the underlying statute of conviction, rather than
[18 U.S.C. § 2], to decide whether the elements clause
is satisfied.” Deiter, 890 F.3d at 1215-16.
The Court sees no reason to depart from this holding in the
context of § 924(c)(3)(A). See Id. at 1212 n.7
(noting that § 924(c)(3)(A) is “nearly”
identical to the elements clause in § 924(e)).
Accordingly, the Court finds that Mr. Campbell's
arguments are foreclosed by Higley, Deiter,
and McCranie. Because aiding and abetting federal
bank robbery qualifies as a crime of violence under §
924(c)(3)(A), Mr. Campbell is not entitled to relief under
Rule 11(a) of the Section 2255 Rules, a “district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Under
28 U.S.C. § 2253(c)(2), the Court may issue a
certificate of appealability “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” Such a showing is made only when “a
prisoner demonstrates ‘that jurists of reason would
find it debatable' that a constitutional violation
occurred, and that the district court erred in its
resolution.” United States v. Pinson, 584 F.3d
972, 975 (10th Cir. 2009) (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). In the present
case, the Court concludes that Mr. Campbell has not made a
substantial showing of the denial of a constitutional right.
Therefore, the Court will deny a certificate of
reasons discussed above, it is
that the Motion to Vacate Sentence [Docket No. 49], filed by
Louis Campbell, is DENIED. It is further
that, under 28 U.S.C. § 2253(c)(2) and the Rules
Governing Section 2255 Proceedings for the United States
District Courts, a certificate of appealability is
DENIED. It is further
that the Motion to Withdraw as Counsel [Docket ...