USA v. Charles

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
United States of America, )
)
Plaintiff, ) 3:06-cr-00026 JWS
)
vs. ) ORDER AND OPINION
)
Christopher Charles, ) [Re: Motion at docket 111]
)
Defendant. )
)
I. MOTION PRESENTED
At docket 111, defendant Christopher Charles (“Charles”) filed a motion pursuant
to 28 U.S.C. § 2255 seeking relief from the judgment at docket 84. The court reviewed
the motion and directed Charles to further explain his position. Charles responded with
additional briefing at docket 113. The United States opposed the motion at docket 116.
II. BACKGROUND
In 2006 a jury convicted Charles on two charges: armed robbery of a financial
institution in violation of 18 U.S.C. §§ 2113(a) and 2113(d), and brandishing a firearm
during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii).
Thereafter, the court sentenced Charles to 76 months incarceration on the armed
robbery charge and a consecutive 84 months incarceration on the firearm charge.
Charles appealed. In November of 2007, the Ninth Circuit dismissed the appeal based
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on Charles’ notice of voluntary dismissal. The matter now pending before this court is
Charles’ first § 2255 motion.
III. DISCUSSION
The gravamen of Charles’ motion is that the armed robbery he committed was
not a “crime of violence” as that term is used in 18 U.S.C. § 924(c)(1)(A). He points to
18 U.S.C. § 924(c)(3)A), which defines a crime of violence as one which “has as an
element the use, attempted use, or threatened use of physical force against the person
or property of another.” Charles then argues that because 18 U.S.C. § 2113(a)
criminalizes the taking of property from another “by force and violence, or by
intimidation” (emphasis added) it is not a crime of violence, and thus, the sentence
imposed for brandishing a firearm is unlawful.
Charles’ motion is untimely. A motion seeking relief under 28 U.S.C. § 2255
must be made within one year.1 Ordinarily, the year runs from the date when the
judgment of conviction became final.2 Charles attempts to avoid this problem by
arguing that his motion rests on a right only recently recognized by the Supreme Court
so that his collateral attack is timely.3 He cites Johnson v. United States.4 There, the
Supreme Court held that imposing an enhanced sentence pursuant to the residual
128 U.S.C. § 2255(f).
228 U.S.C. § 2255(f)(1). Charles’ conviction became final when his appeal was
dismissed by the Court of Appeals in November of 2007. Doc. 107
328 U.S.C. § 2255(f)(3) provides that the year begins to run on “the date on which the
right asserted was initially recognized by the Supreme Court.”
4135 S.Ct. 2551 (2015). The decision was made retroactive by Welch v. United States,
136 S.Ct. 1257 (2016).
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clause in the Armed Career Criminal Act was a violation of due process, because the
residual clause is unconstitutionally vague. That case was decided on June 26, 2015,
and Charles’ initial filing was on June 22, 2016.5 However, Charles’ sentence was not
enhanced pursuant to the Armed Career Criminal Act. His sentence was enhanced
pursuant to 18 U.S.C. 924(c)(1). It follows that Charles’ § 2255 motion is not timely.
Even were Charles’ motion timely, it would fail on the merits. The Ninth Circuit
has expressly stated that “[a]rmed bank robbery qualifies as a crime of violence
because one of the elements of the offense is a taking ‘by force and violence, or by
intimidation.’”6 While the Ninth Circuit made that statement years before the Supreme
Court decided Johnson, in a 2016 decision the Fourth Circuit eschewed the proposition
that after Johnson, bank robbery may not be considered a crime of violence, explaining
that intimidation, as used in § 2113(a), requires the threatened use of physical force.7
IV. CONCLUSION
For the reasons above, the motion at docket 111 is DENIED.
DATED this 29th day of August 2016.
/s/ JOHN W. SEDWICK
SENIOR JUDGE, UNITED STATES DISTRICT COURT
5Doc. 109.
6United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000).
7United States v. McNeal, 818 F.3d 141, 153-154 (4th Cir. 2016).
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