United States v. Candler

          ORDER DENYING § 2255 MOTION

          Philip A. Brimmer, Chief United States District Judge.

         Movant, Markeith J. Candler, has filed a Motion to Vacate Sentence [Docket No. 88] under 28 U.S.C. § 2255 (“§ 2255 motion”). The United States has responded to the § 2255 motion. Docket No. 91. For the reasons discussed below, the § 2255 motion will be denied.

         I. PROCEDURAL HISTORY

         Mr. Candler pled guilty to one count of brandishing a firearm during and in relation to the crime of armed bank robbery, in violation of 18 U.S.C. § 924(c). Docket No. 1 at 3; Docket No. 46; Docket No. 76. On July 22, 2010, the Court sentenced Mr. Candler to a 120-month term of imprisonment. Docket No. 76 at 2. Mr. Candler did not file a direct appeal.

         On June 20, 2016, Mr. Candler moved, pursuant to 28 U.S.C. § 2255, to vacate his § 924(c) conviction on the ground it violates the Fifth Amendment's Due Process Clause. Docket No. 88 at 1. Mr. Candler claims that he is entitled to relief under Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015) (“Johnson”), because his § 924(c) conviction was based on that statute's residual clause. Docket No. 88 at 1.

         II. ANALYSIS

         Mr. Candler 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.^[1]Even assuming Mr. Candler's § 2255 motion is timely, ^[2] it must be denied on the merits. The Tenth Circuit has held that a conviction for armed bank robbery under §§ 2113(a) and (d) “constitutes 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 United States v. Higley, 726 Fed.Appx. 715, 717 (10th Cir. 2018) (unpublished); see also United States v. Lloyd, 741 Fed.Appx. 570, 573 (10th Cir. 2018) (unpublished) (holding that, because “bank robbery is a lesser-included offense of § 2113(d) armed bank robbery, armed bank robbery is also a crime of violence within the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 under § 2113(a) is a crime of violence); United States v. McCranie, 889 F.3d 677, 681 (10th Cir. 2018) (same).^[3]

         To the extent Mr. Candler argues that his conviction is different because the predicate offense was aiding and abetting an armed bank robbery, see Docket No. 88 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). 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. Candler'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. Candler is not entitled to relief under Johnson.

         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. Candler has not made a substantial showing of the denial of a constitutional right. Therefore, the Court will deny a certificate of appealability.

         III. ORDERS

         For the reasons discussed above, it is

         ORDERED that the Motion to Vacate Sentence [Docket No. 88], filed by Markeith J. Candler, is DENIED. It is further

         ORDERED 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

         ORDERED that the Motion to Withdraw as Counsel [Docket ...