United States District Court, D. Colorado
ORDER DENYING § 2255 MOTION
A. Brimmer, Chief United States District Judge.
Kenneth Jordan, has filed a 28 U.S.C. § 2255 Motion to
Vacate (“§ 2255 motion”) [Docket No. 278].
The United States has responded to the § 2255 motion.
Docket No. 285.
reasons discussed below, the § 2255 motion will be
Jordan pled guilty to one count of armed bank robbery (18
U.S.C. § 2113(a) and (d)) and one count of use and
carrying of a firearm in relation to a crime of violence (18
U.S.C. § 924(c)). Docket No. 278 at 2. Mr. Jordan was
sentenced as a career offender pursuant to U.S.S.G. §
4B1.1, which was based upon his two prior convictions for
unarmed bank robbery (18 U.S.C. § 2113(a) and (d)) and
armed robbery of a credit union (18 U.S.C. § 2113(a) and
(d)). Id. Mr. Jordan was sentenced to 262 months
imprisonment for the robbery conviction and 60 months
imprisonment on the § 924(c) conviction for a total
sentence of 322 months. Docket No. 285 at 2.
Jordan 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”) because his underlying
conviction of unarmed robbery no longer qualifies as a crime
of violence. Docket No. 278 at 15.
Jordan argues that, post-Johnson, unarmed bank
robbery is no longer a qualifying crime of violence under the
elements in the career offender sentencing guidelines.
See 559 U.S. at 140 (“[T]he phrase
‘physical force' means violent force - that is,
force capable of causing physical pain or injury to another
person.”); U.S.S.G. § 4B1.2(a)(1) (“The term
‘crime of violence' means any offense under federal
or state law, punishable by imprisonment for a term exceeding
one year, that . . . has an element the use, attempted use,
or threatened use of physical force against the person of
another.”). Mr. Jordan argues that unarmed bank robbery
does not require the use or threatened use of violent
physical force; rather, it requires only that a defendant
take property through intimidation. Docket No. 278 at 6.
Jordan's motion is similar to the argument made in
United States v. McCranie, 889 F.3d 677 (10th Cir.
2018). In McCranie, the defendant pled guilty to
federal bank robbery under 18 U.S.C. § 2113(a).
Id. at 677-78. On appeal, the defendant argued that
unarmed bank robbery, or bank robbery by intimidation, does
not require the threatened use of force and, accordingly, a
bank robbery effected solely by intimidation does not
constitute a violent felony. Id. at 679-80. Mr.
Jordan makes the same argument. Docket No. 278 at 6-8. The
Tenth Circuit in McCranie held that
“intimidation . . . qualifies as a threatened use of
physical force against the person of another.” 889 F.3d
at 680-81. In so doing, it noted that intimidation, in the
context of 18 U.S.C. § 2113(a), is defined as “an
act by [the] defendant ‘reasonably calculated to put
another in fear, or conduct and words calculated to create
the impression that any resistance or defiance by the
individual would be met by force.'” Id. at
680 (quoting United States v. Valdez, 158 F.3d 1140,
1143 (10th Cir. 1998) (alteration in original)). Indeed, the
court noted that “every definition of intimidation
requires a purposeful act that instills objectively
reasonable fear (or expectation) of force or bodily
injury.” Id. Accordingly, the Tenth Circuit
held that bank robbery by intimidation is a crime of violence
under the “elements” clause of §
924(c)(3)(A). Id. at 681. See also United States
v. Jones, 932 F.2d 624, 625 (7th Cir. 1991)
(“There is no ‘space' between ‘bank
robbery' and ‘crime of violence.' A defendant
properly convicted of bank robbery is guilty per se of a
crime of violence, because violence in the board sense that
includes a merely threatened use of force is an element of
every bank robbery.”).
elements clauses in 18 U.S.C. § 924(c)(3)(A) and
U.S.S.G. § 4B1.2(a)(1) are essentially identical. Under
Tenth Circuit precedent, robbery by intimidation necessarily
involves a purposeful act intended to create the impression
that the recipient would be met by force and, accordingly, is
a crime of violence under the “elements” clause
of § 924(c)(3)(A). For this reason, the Court rejects
Mr. Jordan's argument that unarmed robbery does not
qualify as a crime of violence under the sentencing
guidelines' elements clause, see U.S.S.G. §
4B1.2(a)(1), and his argument that the guidelines commentary
alone cannot render an offense a crime of violence.
See Docket No. 278 at 5-6, 10-14.
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 [Docket No.
278], f iled by Kenneth ...