United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
Peter Meeker is currently in custody at the United States
Penitentiary in Leavenworth, Kansas. In 2015, Meeker pleaded
guilty to several armed robberies, armed bank robbery, and
brandishing a firearm during the armed bank robbery. I
sentenced Meeker to 121 months of imprisonment per count on
the armed robbery and armed bank robbery charges, all running
concurrently. I sentenced him to 84 months of imprisonment on
the brandishing-of-a-firearm charge, to run consecutively to
the other counts. See United States v. Meeker, No.
14-cr-110-jdp (W.D. Wis. May 22, 2015), Dkt. 58.
has filed a motion for postconviction relief under 28 U.S.C.
§ 2255, alleging that his conviction and sentence on the
brandishing-a-firearm charge under 18 U.S.C. §§
924(c) is unconstitutional under a theory articulated in
Johnson v. United States, 135 S.Ct. 2551 (2015).
Meeker has also filed a motion for appointment of counsel.
Meeker is proceeding pro se, I must review his petition under
“less stringent standards than formal pleadings drafted
by lawyers.” Haines v. Kerner, 404 U.S. 519,
520 (1972) (per curiam). After conducting a preliminary
review of the petition under Rule 4 of the Rules Governing
Section 2255 Cases in the United States District Courts, I
conclude that Meeker is not entitled to relief under
Johnson. I will therefore deny Meeker's motion
to vacate his sentence as well as his motion for appointment
obtain relief under 28 U.S.C. § 2255, a prisoner must
show that the district court sentenced him “in
violation of the Constitution or laws of the United States,
or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum
authorized by law, or that it is otherwise subject to
collateral attack.” Relief under § 2255 is
appropriate only for “‘an error of law that is
jurisdictional, constitutional, or constitutes a fundamental
defect which inherently results in a complete miscarriage of
justice.'” Harris v. United States, 366
F.3d 593, 594 (7th Cir. 2004) (quoting Borre v. United
States, 940 F.2d 215, 217 (7th Cir. 1991)).
pleaded guilty to several offenses, including armed bank
robbery under 18 U.S.C. § 2113(a) and (d) for an October
2014 robbery of a Bank of Poynette branch located in Lodi,
Wisconsin. Count 11 of the superseding indictment included an
additional charge for brandishing a firearm during this
robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii),
which states in relevant part:
[A]ny person who, during and in relation to any crime of
violence or drug trafficking crime . . . for which the person
may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm, shall, in addition to the punishment
provided for such crime of violence or drug trafficking
* * *
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years . . . .
Section 924 (c)(3) defines “crime of violence” as
a felony that:
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
contends that the brandishing-a-firearm conviction should be
vacated because the “crime of violence”
definition as applied to his underlying armed bank robbery
charge is unconstitutionally vague under Johnson.
Meeker argues that Johnson's holding that the
“residual clause” of the Armed Career Criminal
Act, § 924(e)(2)(B), was unconstitutionally vague should
be extended to § 924 (c)(3)(B), because it contains
language similar to that of § 924(e)(2)(B).
question whether the reasoning of Johnson should be
extended to § 924 (c)(3)(B) is irrelevant, because the
Court of Appeals for the Seventh Circuit has already made
clear that convictions like Meeker's do not depend on
subsection B. In United States v. Armour, 840 F.3d
904, 907-09 (7th Cir. 2016), the court ruled that convictions
for armed bank robbery under 18 U.S.C. § 2113(a) and
qualify as “crimes of violence” under the
“elements clause” (subsection A) of § 924
(c)(3), so it did not need to reach the question whether
subsection B is unconstitutionally vague. Because
Meeker's armed bank robbery conviction qualifies as a
crime of ...