United States District Court, E.D. Wisconsin
EDDIE D. MORANT, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE (DOC. 1), DISMISSING CASE, AND
DENYING CERTIFICATE OF APPEALABILITY
CLEVERT, JR. U.S. DISTRICT JUDGE.
Morant has filed a motion under 28 U.S.C. § 2255
asserting that his conviction and sentence in this court were
imposed in violation of the Constitution. Morant was
convicted of seven counts of firearms violations and bank
robbery and was sentenced to thirty-two years of
imprisonment. Morant raises one ground: that his 18 U.S.C.
§ 924(c) offense (for which he received eighty-four
months of consecutive imprisonment) is invalid under
Johnson v. United States, 135 S.Ct. 2551 (2015).
court ordered the government to respond to Morant's
motion, which it did on February 21, 2017. In the response,
the government argues that notwithstanding Johnson,
armed bank robbery remains a crime of violence under the
elements clause of 18 U.S.C. § 924(c)(3)(A). On February
23, the court gave Morant a deadline of March 27 by which to
file a reply, if any. Morant did not file any reply by that
date; and appears to concede the response's merits.
2003, a jury found Morant guilty of seven counts of armed
bank robbery, in violation of 18 U.S.C. § 2113(a) and
(d) (counts four through ten); one count of brandishing a
firearm in furtherance of a crime of violence, in violation
of 18 U.S.C. § 924(c)(1)(A)(ii) (count twelve); and one
count of felon in possession of a firearm, in violation of 18
U.S.C. § 922(g)(1) (count thirteen). Morant seeks to
vacate his conviction on count twelve, asserting that after
Johnson there are no qualifying crimes of violence
to support the § 924(c) conviction.
struck down the “residual clause” of the Armed
Career Criminal Act, 28 U.S.C. § 924(e) (ACCA), as void
for vagueness. The ACCA provides that a person convicted of
certain firearm possession crimes and who has three previous
convictions “for a violent felony or a serious drug
offense, or both” be sentenced to not less than fifteen
years. For purposes of subsection 924(e), “violent
felony” means any crime punishable by imprisonment for
more than one year that
(I) has as an element the use, attempted use, or threatened
use of physical force against the person of another, or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
§ 924(e)(2)(B) (emphasis added). The portion in italics
is called the “residual clause.”
was convicted under § 924(c)(1)(A), which provides
enhanced penalties for a defendant who “during and in
relation to any crime of violence or drug trafficking crime .
carries a firearm, or who, in furtherance of ony such crime,
possesses a firearm.” For purposes of § 924(c),
“crime of violence” means 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.
motion is likely based on the similarity between §
924(c)'s “crime of violence” and
Johnson's “violent felony” from
§ 924(e). However, notwithstanding any similar language
between the statutes, Johnson did not affect the
first clause of § 924(e), known as the “elements
clause.” See United States v. Armour, 840 F.3d
904, 907-08 (7th Cir. 2016). In Armour, the Seventh
Circuit found that, even after Johnson, armed bank
robbery qualifies as a crime of violence under the elements
clause of § 924(c)(3). 840 F.3d at ...