United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. Brimmer, Chief United States District Judge.
James L. Graber, has filed a 28 U.S.C. § 2255 Motion to
Vacate Sentence (“§ 2255 motion”) (Docket
No. 28). The United States has responded to the
§ 2255 motion. Docket No. 31.
reasons discussed below, the § 2255 motion will be
Graber pled guilty to armed bank robbery (18 U.S.C. §
2113(a) and (d)) and brandishing a firearm in furtherance of
a crime of violence (18 U.S.C. § 924(c)(1)(A)(ii)).
Docket No. 26 at 1. The predicate crime of violence for Mr.
Graber's § 924(c) conviction was a violation of the
federal bank robbery statute. Id. He was sentenced
to 63 months imprisonment for the bank robbery conviction and
to 84 months imprisonment for the brandishing a weapon
conviction. Id. at 2. Mr. Graber moves, pursuant to
28 U.S.C. § 2255, to vacate his sentence on the basis
that it violates Johnson v. United States, 135 S.Ct.
2551 (2015) (“Johnson”). He argues that,
because bank robbery does not qualify as a crime of violence
under § 924(c)(3)(A) (the “elements”
clause), his conviction under § 924(c) was necessarily
based upon the section's residual clause, which is
unconstitutional pursuant to Johnson. Docket No. 28
Graber's motion is nearly identical to the argument made
in United States v. Higley, 726 Fed.Appx. 715 (10th
Cir. 2018) (unpublished). In Higley, as here, the
defendant was convicted of a violation of 18 U.S.C. §
924(c) based on a conviction for armed bank robbery under 18
U.S.C. §§ 2113(a) and (d). Id. at 716. The
defendant argued that armed bank robbery no longer qualifies
as a crime of violence under § 924(c) because the
“residual” clause of § 924(c) is
unconstitutionally vague under Johnson, which
invalidated the residual clause of the Armed Career Criminal
Act - 18 U.S.C. § 924(e) - for the same reason.
Id. After assuming that the defendant's §
2255 motion was timely and after applying the categorical
approach, the Tenth Circuit held that the defendant's
“conviction for armed bank robbery  constitutes a
‘crime of violence' under the alternate,
elements-based definition in § 924(c)(3)(A).”
Id. at 717. See also United States v.
McCranie, 889 F.3d 677, 681 (10th Cir. 2018) (bank
robbery under § 2113(a) is a crime of violence);
United States v. Rinker, 746 Fed.Appx. 769, 772
(10th Cir. 2018) (unpublished) (armed bank robbery is, after
McCranie, indisputably a crime of violence).
Graber makes the same argument, suggesting that robbery is
not a crime of violence and, accordingly, his enhanced
sentence could only be based upon the residual clause, which
is unconstitutional under Johnson. Docket No. 28 at
3-8. Applying the categorical approach here, the Court finds
that armed robbery is a crime of violence under Tenth Circuit
precedent and that the defendant's argument is foreclosed
by McCranie and Higley. As a result, Mr.
Graber's motion must be denied.
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 movant 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 28 U.S.C. § 2255 Motion to Vacate Sentence
[Docket No. 28] is DENIED. It is further
that the Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
[Docket No. 27] is DENIED as superseded, and
thereby mooted, by Docket No. 28. It is further
that the Motion to Withdraw as Counsel [Docket No. 37] ...