United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. Brimmer, Chief United States District Judge.
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.
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.
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.
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.Even assuming Mr. Candler'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) “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(10th Cir. 2018) (unpublished); see also United States v.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(unpublished) (holding that, because “bank robbery is a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).
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
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
reasons discussed above, it is
that the Motion to Vacate Sentence [Docket No. 88], filed by
Markeith J. Candler, is DENIED. It is
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 ...