United States v. Green

467 F.Supp.3d 252

UNITED STATES of America

v.Tristan GREEN (3), Defendant

CRIMINAL NO. 1:12-CR-9

United States District Court, M.D. Pennsylvania.

Signed June 17, 2020

Eric Pfisterer, Daryl Ford Bloom, Office of U.S. Attorney, Harrisburg, PA, for United States of America.

MEMORANDUM

Christopher C. Conner, United States District Judge

In January 2013, a jury convicted defendant Tristan Green of three counts of armed bank robbery in violation of 18 U.S.C. § 2113(d) and three counts of using, carrying, and brandishing a firearm during those armed bank robberies in violation of 18 U.S.C. § 924(c)(1)(A). Green moves the court pursuant to 28 U.S.C. § 2255 for vacatur of all three Section 924(c) convictions based on the United States Supreme Court's decision in United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019). We conclude that Davis has no application to Green's convictions and sentence and will accordingly deny Green's Section 2255 motions.

I. Factual Background & Procedural History

On January 25, 2012, a federal grand jury returned a six-count indictment charging Green and three others with armed bank robbery and firearms offenses. The grand jury returned a superseding indictment on August 29, 2012, renumbering certain offenses and adding others. The superseding indictment charged Green as follows:

• in Count I, armed bank robbery on September 20, 2007, in violation of 18 U.S.C. § 2113(a) and (d), 18 U.S.C. § 2, and Pinkerton v. United States, 328 U.S. 640, 66 S.Ct. 1180, 90 L.Ed. 1489 (1946) ;

• in Count II, use of a firearm in furtherance of a crime of violence (armed bank robbery) on September 20, 2007, in violation of 18 U.S.C. § 924(c)(1)(A) and Pinkerton;

• in Count III, armed bank robbery on November 14, 2007, in violation of 18 U.S.C. § 2113(a) and (d), 18 U.S.C. § 2, and Pinkerton;

• in Count IV, use of a firearm in furtherance of a crime of violence (armed bank robbery) on November 14, 2007, in violation of 18 U.S.C. § 924(c)(1)(A) and Pinkerton;

• in Count V, armed bank robbery on December 6, 2007, in violation of 18 U.S.C. § 2113(a) and (d), 18 U.S.C. § 2, and Pinkerton; and

• in Count VI, use of a firearm in furtherance of a crime of violence (armed bank robbery) on December 6, 2007, in violation of 18 U.S.C. § 924(c)(1)(A) and Pinkerton.

(Doc. 62).

Green and one other codefendant proceeded to a jury trial on January 28, 2013. After four days of evidence and three hours of deliberation, the jury found Green guilty on all six counts. (See Doc. 179). On each of the robbery counts, the jury found that Green "did commit the crime of armed bank robbery ... or aided and abetted another in the commission of armed bank robbery." (Id. at 1, 2, 3). Likewise, on the firearm counts, the jury found that Green "or a coconspirator did knowingly carry, use, and brandish a firearm during and in relation to a crime of violence, namely bank robbery, or aided and abetted another in carrying, using, and brandishing a firearm during and in relation to a crime of violence." (Id. )

The court sentenced Green to an aggregate term of 1,030 months' imprisonment, consisting of 130 months on each of the armed bank robbery counts to be served concurrently, and three 25-year mandatory minimum terms on each of the Section 924(c) counts, required by statute to be served consecutively to each other and to all other counts. (Doc. 226). Green appealed his convictions to the Third Circuit Court of Appeals, and the Third Circuit affirmed on April 22, 2014. See United States v. Green, 563 F. App'x 913 (3d Cir. 2014) (nonprecedential).

In July 2015, days before the one-year limitations period for filing a Section 2255 motion expired, Green moved the court for an extension of the Section 2255 deadline, asserting that an institutional lockdown prevented him from preparing a timely postconviction motion. (Doc. 294). We denied that motion, (see Doc. 295), and the Third Circuit denied Green's request for a certificate of appealability, see United States v. Green, No. 15-2962 (3d Cir. Dec. 1, 2015).

Green filed a Section 2255 motion (Doc. 331) through appointed counsel on June 22, 2016, invoking the Supreme Court's decision in Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). Green's appointed counsel applied to the Third Circuit for authorization to proceed with a second or successive motion in this court and, at Green's request, we stayed his motion while the Third Circuit considered his application. (Doc. 334). Proceedings here and in the court of appeals then remained stayed while the Johnson progeny unfolded. See Welch v. United States, 578 U.S. ––––, 136 S. Ct. 1257, 194 L.Ed.2d 387 (2016) ; Sessions v. Dimaya, 584 U.S. ––––, 138 S. Ct. 1204, 200 L.Ed.2d 549 (2018) ; United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019).

On August 15, 2019, the Third Circuit granted Green's application (along with the applications of approximately 200 other defendants) for leave to proceed with his second or successive Section 2255 motion in this court. In re Green, No. 16-2079 (3d Cir. Aug. 15, 2019) (citing In re Matthews, 934 F.3d 296 (3d Cir. 2019) ). We thereafter entered this judicial district's standing order appointing counsel to file on Green's behalf any supplemental Section 2255 motion that may be warranted based on the Supreme Court's Davis decision. (Doc. 391). Appointed counsel filed a supplemental motion on March 13, 2020, and that motion is fully briefed. (See Docs. 398, 400, 401).

II. Standard of Review

Under Section 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. 28 U.S.C. § 2255. Courts may afford relief under Section 2255 on a number of grounds including, inter alia , "that the sentence was imposed in violation of the Constitution or the laws of the United States." Id. § 2255(a) ; see also 28 U.S.C. § 2255 Rule 1(a). The statute provides that, as a remedy for an unlawfully imposed sentence, "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b). The court accepts the truth of the defendant's allegations when reviewing a Section 2255 motion unless those allegations are "clearly frivolous based on the existing record." United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). A court is required to hold an evidentiary hearing when the motion "allege[s] any facts warranting § 2255 relief that are not clearly resolved by the record." United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (quoting Booth, 432 F.3d at 546 ).

III. Discussion

Green filed the instant motions seeking to vacate his Section 924(c) convictions and consecutive mandatory minimum sentences.¹ Section 924(c) establishes enhanced punishments for any individual who uses, carries, brandishes, or discharges a firearm "during and in relation to any crime of violence." 18 U.S.C. § 924(c)(1)(A). The length of the mandatory minimum term depends on whether the defendant uses, carries, or possesses the firearm (5 years); brandishes the firearm (7 years); or discharges the firearm (10 years). Id. § 924(c)(1)(A)(i)-(iii). An individual like Green who violates Section 924(c) after sustaining a prior conviction under that section is subject to a consecutive 25-year mandatory minimum term for each subsequent violation. Id. § 924(c)(1)(C)(i).

A felony offense is a "crime of violence" for purposes of Section 924(c) if it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," id. § 924(c)(3)(A), or "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," id. § 924(c)(3)(B). Courts refer to these clauses as the "elements clause" and the "residual clause," respectively. United States v. Robinson, 844 F.3d 137, 140-41 (3d Cir. 2016), cert. denied, ––– U.S. ––––, 138 S. Ct. 215, 199 L.Ed.2d 141 (2017), abrogated on other grounds by Davis, 139 S. Ct. 2319.

Green's postconviction arguments have been a moving target. Initially, Green relied on the Supreme Court's decision in Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015), which struck down the Armed Career Criminal Act's crime-of-violence residual clause as unconstitutionally vague. Johnson, 135 S. Ct. at 2557. Green argued that the residual clause of Section 924(c) is virtually identical to the Armed Career Criminal Act's residual clause and that Johnson's rationale thus applies with equal force to invalidate the residual clause of Section 924(c). (Doc. 331 at 3-7). Green further argued that a conviction for armed bank robbery does not qualify as a predicate crime of violence under Section 924(c)'s elements clause, effectively eliminating both clauses as support for his three firearm convictions. (See id. at 7-12).

The case law has evolved since Green filed his initial motion. In 2018, the Third Circuit held that both armed bank robbery under 18 U.S.C. § 2113(d) and unarmed bank robbery under 18 U.S.C. § 2113(a) qualify categorically as crimes of violence for purposes of Section 924(c)'s elements clause. United States v. Johnson, 899 F.3d 191, 202-04 (3d Cir. 2018) (citing United States v. Wilson, 880 F.3d 80, 84-85 (3d Cir. 2018) ). Then in 2019, the Supreme Court decided United States v. Davis, 588 U.S. ––––, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019), which invalidated Section 924(c)'s residual clause as unconstitutionally vague. Davis, 139 S. Ct. at 2336.

Green's legal arguments have morphed in a transparent effort to take advantage of these recent decisions. Specifically, Green contends that Davis eliminates the residual clause as a vehicle for qualifying his armed-bank-robbery convictions as predicate crimes of violence. (See Doc. 398 at 8). And ostensibly in...