United States District Court, E.D. Wisconsin
STADTMUELLER, U.S. DISTRICT JUDGE
August 11, 2016, the petitioner, Naquan Devell Moore, filed a
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. (Docket #1). On October 24, 2016, the
government filed a response to the motion. (Docket #5). Mr.
Moore did not file a reply brief.
Moore argues that his conviction under 18 U.S.C. §
924(c)-brandishing a firearm during or in relation to a crime
of violence-must be vacated under the reasoning of
Johnson v. United States, 135 S.Ct. 2551 (2015).
(Docket #1). Notwithstanding Johnson, the Court
agrees with the government that Mr. Moore's conviction
for federal armed bank robbery supports his Section 924(c)
conviction because armed bank robbery has as an element the
use, attempted use, or threatened use of force. See 18
U.S.C. § 2113(a)-(d); 18 U.S.C. § 924(c)(3)(A).
Thus, because Mr. Moore's Section 924(c) conviction is
unaffected by Johnson, his motion for relief will be
essence, Mr. Moore argues armed bank robbery is not a
“crime of violence” as that term is defined in
Section 924(c); and, as such, his conviction for brandishing
a firearm in relation to a crime of violence must be vacated.
Section 924(c) defines a “crime of violence, ” in
part, using language that is similar to the “residual
clause” that was struck down as unconstitutionally
vague in Johnson. See 18 U.S.C.
§§ 924(c)(3)(B); 924(e)(2)(B). However, Section
924(c) also defines a “crime of
violence” as an offense that “has as an element
the use, attempted use, or threatened use of physical force
against the person or property of another.”
See 18 U.S.C. § 924(c)(3)(A) (the
“elements clause”). Federal law defines armed
bank robbery as the taking “by force and violence, or
by intimidation, ” of bank property “from the
person or presence of another.” See 18 U.S.C.
armed robbery is a crime of violence because it has as an
element the use of force, i.e., it satisfies the
elements clause of Section 924(c)(3)(A). See Simmons v.
United States, No. 16-2630, at *1-2 (7th Cir. July 21,
2016) (explaining that “[b]ecause the elements clause
of § 924(c) encompasses crimes that have ‘as an
element the use, attempted use, or threatened use of physical
force against the person or property of another, '”
18 U.S.C. § 924(c)(3)(A), the classification of federal
bank robbery as a crime of violence is unaffected by
Johnson); United States v. McBride, No.
15-3759, 2016 WL 3209496, at *2 (6th Cir. June 10, 2016)
(concluding that bank robbery by intimidation remains a crime
of violence after Johnson); United States v.
Steppes, No. 15-10243, 2016 WL 3212168, at *1 (9th Cir.
June 10, 2016) (concluding that bank robbery is a crime of
violence under elements clause of § 924(c)(3)); In
re Hines, No. 16-12454-F, 2016 WL 3189822, at *3 (11th
Cir. June 8, 2016) (denying application for successive §
2255 because “a conviction for armed robbery clearly
meets the requirements for an underlying felony
offense” under the elements clause); Clark v.
United States, No. 11-CR-30-2-JPG, 2016 WL 845271, at
*25 (E.D. Wis. Mar. 4, 2016) (“Every decision the Court
has found to have considered the issue has concluded that
bank robbery and similar crimes constitute crimes of violence
under the range of statutes that Johnson's reasoning
might affect.”) (collecting cases).
fact that the federal armed bank robbery statute includes the
word “intimidation” is of no moment.
Simmons, No. 16-2630, at *1-*2; McKinney,
No.16-2210, at *2-*3. To the contrary, the Seventh Circuit
has held that “intimidation” in this context
contemplates the use of force. See Simmons, No.
16-2630, at *2 (“This court has defined intimidation as
the threatened use of force.”) (citing United
States v. Gordon, 642 F.3d 596, 598 (7th Cir. 2011))
(“[I]ntimidation exists when a bank robber's words
and actions would cause an ordinary person to feel
threatened, by giving rise to a reasonable fear that
resistance or defiance will be met with force.”);
see also United States v. Smith, 131 F.3d 685, 688
(7th Cir. 1997) (“[I]ntimidation is a reasonable fear
that resistance will be met with physical force.”).
This Court, therefore, will deny Mr. Moore's petition to
vacate, correct, or set aside his sentence. See
Simmons, No. 16-2630, at *1-*2; Clark, No.
11-CR-30-2-JPG, 2016 WL 845271, at *25 (collecting cases);
United States v. Mitchell, No. 15-CR-47, 2015 WL
7283132 (E.D. Wis. Nov. 17, 2015).
under Rule 11(a) of the Rules Governing Section 2255 Cases,
“the district court must issue or deny a certificate of
appealability when it enters a final order adverse to the
applicant.” To obtain a certificate of appealability
under 28 U.S.C. § 2253(c)(2), Mr. Moore must make a
“substantial showing of the denial of a constitutional
right” by establishing that “reasonable jurists
could debate whether (or, for that matter, agree that) the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal citations
omitted). Further, when the Court has denied relief on
procedural grounds, the petitioner must show that jurists of
reason would find it debatable both that the “petition
states a valid claim of the denial of a constitutional
right” and that “the district court was correct
in its procedural ruling.” Slack v. McDaniel,
529 U.S. 473, 484 (2000). In light of the case law outlined
above, the Court cannot fairly conclude that reasonable
jurists would debate whether Mr. Moore's motion should be
decided differently; as a consequence, the Court is compelled
to deny a certificate of appealability as to Mr. Moore's
the Court closes with some information about the actions that
Mr. Moore may take if he wishes to challenge the Court's
resolution of this case. This order and the judgment to
follow are final. A dissatisfied party may appeal this
Court's decision to the Court of Appeals for the Seventh
Circuit by filing in this Court a notice of appeal within 30
days of the entry of judgment. See Fed. R. App. P.
3, 4. This Court may extend this deadline if a party timely
requests an extension and shows good cause or excusable
neglect for not being able to meet the 30-day deadline.
See Fed. R. App. P. 4(a)(5)(A). Moreover, under
certain circumstances, a party may ask this Court to alter or
amend its judgment under Federal Rule of Civil Procedure
59(e) or ask for relief from judgment under Federal Rule of
Civil Procedure 60(b). Any motion under Federal Rule of Civil
Procedure 59(e) must be filed within 28 days of the entry of
judgment. The Court cannot extend this deadline. See
Fed. R. Civ. P. 6(b)(2). Any motion under Federal Rule of
Civil Procedure 60(b) must be filed within a reasonable time,
generally no more than one year after the entry of the
judgment. The court cannot extend this deadline. See Federal
Rule of Civil Procedure 6(b)(2). A party is expected to
closely review all applicable rules and determine what, if
any, further action is appropriate in a case.
IT IS ORDERED that Mr. Moore's motion to vacate, set
aside, or correct his sentence pursuant to Section 2255
(Docket #1) be and the same is hereby DENIED;
FURTHER ORDERED that this action be and same is hereby
DISMISSED with prejudice; and
FURTHER ORDERED that a certificate of appealability be and
the same is hereby DENIED.
Clerk of Court is directed to enter judgment accordingly.