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United States v. Carr

United States Court of Appeals, District of Columbia Circuit

January 7, 2020

United States of America, Appellee
v.
Brian Eric Carr, Appellant

          Argued October 17, 2019

          Appeal from the United States District Court for the District of Columbia (No. 1:02-cr-00106-1)

          A.J. Kramer, Federal Public Defender, argued the cause and filed the briefs for appellant.

          Elizabeth Gabriel, Assistant U.S. Attorney, argued the cause for appellee. With her on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman and Suzanne Grealy Curt, Assistant U.S. Attorneys.

          Before: Henderson and Rao, Circuit Judges, and Williams, Senior Circuit Judge.

          OPINION

          Rao, Circuit Judge

         After Brian Carr was convicted under the federal bank robbery statute, see 18 U.S.C. § 2113(a), the district court elevated his sentencing range on the grounds that he was a "career offender." See U.S. Sentencing Guidelines Manual § 4B1.1 (2002). To reach that conclusion, the judge found that two prior convictions under the same bank robbery statute were "crime[s] of violence" under the Guidelines. See id. § 4B1.2(a). At the time, the Guidelines' definition of a crime of violence was nearly identical to the definition of "violent felony" under the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e)(2)(B). While Carr was serving his sentence, the Supreme Court struck down one part of ACCA's definition of a violent felony-a provision commonly known as the residual clause. See Johnson v. United States, 135 S.Ct. 2551 (2015). Carr filed a motion under 28 U.S.C. § 2255 to vacate or correct his sentence, arguing that the Guidelines' identical residual clause is also unconstitutional.

         We need not reach Carr's constitutional objection, because in 2003, when Carr was sentenced, a prior conviction could be a crime of violence under either the residual clause or the Guidelines' independent elements clause, which defines a crime of violence as one that "has as an element the use, attempted use, or threatened use of physical force." See U.S.S.G. § 4B1.2(a)(1). The federal bank robbery statute requires proof that a defendant took property "by force and violence, or by intimidation." See 18 U.S.C. § 2113(a). To satisfy this requirement, the defendant must have at least knowingly threatened someone with physical force (or have attempted to do so), which squarely places the offense within the Guidelines' elements clause. We therefore affirm the district court's holding that Carr's prior bank robbery convictions were crimes of violence and affirm the denial of Carr's motion for post-conviction relief.

         I.

         In 2002, Carr walked into a bank in downtown Washington, D.C., and gave the teller a note demanding money. United States v. Carr, 373 F.3d 1350, 1352 (D.C. Cir. 2004). The police arrested him at the scene of the crime and later linked him to four other robberies. Id. Carr was then indicted and convicted of five counts of bank robbery under Section 2113(a). During sentencing, the judge found that two prior convictions under the same statute each counted as a crime of violence. Those two prior convictions for crimes of violence made Carr a career offender, U.S.S.G. § 4B1.1, which significantly elevated his sentencing range. At the time of Carr's sentencing, the Guidelines defined a crime of violence in part as:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         U.S.S.G. § 4B1.2(a). This provision includes two distinct definitions that are relevant here. Subsection (1) of this definition is the elements clause. The second half of Subsection (2)-"or otherwise involves conduct that presents a serious potential risk of physical injury to another"-was the residual clause.[1] When Carr was sentenced, however, the judge did not specify whether he relied on the Guidelines' residual clause or the elements clause in finding that the prior bank robbery convictions were crimes of violence.[2]

         Without the career offender enhancement, Carr would have had a Guidelines range of 140 to 175 months. After the enhancement, Carr's Guidelines range was 210 to 262 months. Carr appealed, and this court affirmed. See Carr, 373 F.3d 1350. In 2005, Carr brought his first motion to vacate his sentence under Section 2255. See Memorandum, United States v. Carr (D.D.C. Feb. 21, 2006) (No. 02-106). He raised several ineffective assistance of counsel claims, none of which were successful. Id.

         While Carr was serving his sentence, the Supreme Court decided Johnson, which held the residual clause of ACCA's definition of a violent felony was void for vagueness in violation of the Due Process Clause. 135 S.Ct. 2551. The residual clause held unconstitutional in Johnson exactly mirrors the residual clause defining a crime of violence in the Sentencing Guidelines. See In re Sealed Case, 548 F.3d 1085, 1089 (D.C. Cir. 2008) (explaining that ...


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