United States of America v. VERNE JAY MERRELL, AKA Thomas C. James, AKA Jay, AKA Carl Avery Martell, AKA Jay Merrell

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
VERNE JAY MERRELL, AKA Thomas C.
James, AKA Jay, AKA Carl Avery Martell,
AKA Jay Merrell,
Defendant-Appellant.
No. 20-30183
D.C. Nos.
2:96-cr-00257-WFN-1
2:96-cr-00257-WFN
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ROBERT SHERMAN BERRY, AKA Jim
Preston,
Defendant-Appellant.
No. 20-30189
D.C. No.
2:96-cr-00259-WFN-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 21-30043
D.C. No.
2:96-cr-00258-WFN-1
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JUN 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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CHARLES HARRISON BARBEE,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Argued and Submitted April 12, 2022
Seattle, Washington
Before: BOGGS,** HURWITZ, and SUNG, Circuit Judges.
In 1997, Verne Merrell, Robert Berry, and Charles Barbee (“appellants”) were
convicted of twelve offenses, including four crimes of violence under 18 U.S.C.
§ 924(c). In 2019, the district court granted relief under 28 U.S.C. § 2255 and
vacated two of the § 924(c) convictions, finding that the underlying predicate
offenses did not qualify as crimes of violence in light of United States v. Davis, 139
S. Ct. 2319, 2336 (2019). The district court then resentenced appellants on the
remaining § 924(c) convictions, both of which were predicated on armed bank
robbery in violation of 18 U.S.C. § 2113(a). The district court imposed a thirty-year
sentence on one of those counts because the firearm used in that crime was a
“destructive device” – a pipe bomb. See 18 U.S.C. §924(c)(1)(B)(ii).
** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

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1. Appellants contend that the thirty-year penalty imposed for use of the
pipe bomb was improper under the rule of Apprendi v. New Jersey, 530 U.S. 466
(2000), because the jury did not find that the “firearm” used in the bank robbery was
a “destructive device.” See United States v. Perez, 129 F.3d 1340, 1342 (9th Cir.
1997) (“For purposes of § 924(c)(1), the type of firearm used . . . is an element of
the offense on which a jury instruction and finding is required.”). We reject that
contention. The jury was correctly instructed that under § 924(c)(1), a “firearm”
includes a “destructive device,” including “any explosive, [or] incendiary . . . bomb.”
See 18 U.S.C. § 921(a)(3)(A)–(D), (a)(4)(A) (Sept. 30, 1996). In the same
instructions, the court included a copy of Count Five, which alleged that the offense
involved use of “a firearm that is a destructive device (a pipe bomb).” More
importantly, the verdict form returned by the jury expressly stated that the jury found
the appellants “guilty of the offense of use of a firearm (pipe bomb) during a crime
of violence (armed bank robbery on April 1, 1996) as alleged in Count 5 of the
Indictment.”
2. Barbee and Merrell also contend that armed bank robbery in violation
of 18 U.S.C. § 2113(a) is not categorically a crime of violence, arguing that our
decision to the contrary in United States v. Watson, 881 F.3d 782, 786 (9th Cir.
2018), cannot be reconciled with the Supreme Court’s subsequent opinion in
Stokeling v. United States, 139 S. Ct. 544, 550 (2019). Our decisions after Stokeling,

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however, have reaffirmed that armed bank robbery in violation of § 2113(a) is
categorically a crime of violence. See United States v. Hylton, 30 F.4th 842, 849
(9th Cir. 2022); Young v. United States, 22 F.4th 1115, 1121 (9th Cir. 2022).
AFFIRMED.1
1 We hold in a separate opinion filed today that the First Step Act of 2018, Pub.
L. No. 115–391, tit. IV, § 403, 132 Stat. 5194, 5221–22 (2018), applies to appellants’
resentencings after the grant of 18 U.S.C. § 2255 relief, and remand for the district
court to resentence appellants in light of that Act. United States v. Merrell, No. 20-
30183 (9th Cir. 2022).

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