United States District Court, D. Maryland
THEODORE D. CHUANG JUDGE
October 12, 2017, Petitioner Iesha Nicole Armstrong pleaded
guilty to one count of armed bank robbery, in violation of 18
U.S.C. § 2113 (a) and (d), and one count of using,
carrying, and brandishing a firearm during and in relation to
a crime of violence ("§ 924(c)"), in violation
of 18 U.S.C. § 924(c). On February 9, 2018, Armstrong
was sentenced to 84 months of imprisonment on the armed bank
robbery conviction and a mandatory minimum, consecutive
84-month sentence on the § 924(c) conviction. Although
Armstrong did not appeal her conviction or sentence, she has
now filed a Motion to Vacate, Set Aside, or Correct Sentence
pursuant to 28 U.S.C.§2255. In her Motion, Armstrong
argues that in light of recent case law, specifically
Johnson v. United States, 135 S.Ct. 2551 (2015), and
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), her
§ 924(c) conviction must be vacated. She also claims
that both convictions and sentences should be vacated based
on ineffective assistance of counsel. The Motion is fully
briefed, and the Court finds that no hearing is necessary.
See Rule 8(a), Rules Governing Section 2255
Proceedings for the United States District Courts; D. Md.
Local R. 105.6. For the reasons set forth below, the Motion
will be denied.
prisoner in federal custody may move to vacate, set aside, or
correct a sentence on the basis that: (1) "the sentence
was imposed in violation of the Constitution or laws of the
United States"; (2) the sentencing court lacked
jurisdiction; (3) the sentence exceeded the maximum
authorized by law; or (4) the sentence is "otherwise
subject to collateral attack." 28 U.S.C. § 2255(a)
(2018). The petitioner bears the burden of proof and must
establish the claim by a preponderance of the evidence.
See Miller v. United States, 261 F.2d 546, 547 (4th
Johnson and Dimaya
claim that Johnson and Dimaya have
effectively invalidated her § 924(c) conviction lacks
merit. Section 924(c) defines a "crime of violence"
as a felony that either "(A) has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another," or "(B) 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." 18 U.S.C. §
924(c)(3) (2018). The former provision is commonly referred
to as the "force clause"; the latter, as the
"residual clause." In Johnson, the United
States Supreme Court held that a similar residual clause in
the definition of a "violent felony" under the
Armed Career Criminal Act, 18 U.S.C. § 924(e), is
unconstitutionally vague. Johnson, 135 S.Ct. at
2563. In Dimaya, the Court held that the residual
clause applicable to the Immigration and Nationality
Act's definition of "aggravated felony," as
stated in 18 U.S.C. § 16(b), is likewise
unconstitutionally vague. Dimaya, 138 S.Ct. at
1215-16. In January 2019, the United States Court of Appeals
for the Fourth Circuit held that the residual clause of the
definition of "crime of violence" under §
924(c) is also unconstitutionally vague. United States v.
Simms, 914 F.3d 229, 236 (4th Cir. 2019).
rulings have no impact on Armstrong's conviction.
Johnson and its progeny have found residual clauses
unconstitutionally vague where they define a crime of
violence or similar term as including offenses for which
there is a "substantial risk" that physical force
will be used. Here, Armstrong's predicate "crime of
violence" underlying her § 924(c) conviction was
armed bank robbery, 18 U.S.C.§2113(a), (d). Since
Johnson, the Fourth Circuit has held that federal
bank robbery is a crime of violence under§924(c)
pursuant to the force clause, 18 U.S.C. § 924(c)(3)(A,,
because it "has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another." United States v. McNeal,
818 F.3d 141, 157 (4th Cir.2016).
ThisholdingappliedtobothS2113(a) and §2113(d).
Id. Where armed bank robbery's status as a crime
of violence for purposes of § 924(c) relies on the force
clause and not the residual clause, the claim that
Johnson and Dimaya effectively invalidate
Armstrong's§924(c) conviction fails.
Ineffective Assistance of Counsel The Sixth
Amendment to the United States Constitution affords a
criminal defendant the right to "Assistance of
Counsel." U.S. Const. amend. VI. The Supreme Court has
stated that "assistance which is ineffective in
preserving fairness (of a trial] does not meet the
constitutional mandate." Mickens v. Taylor, 535
U.S. 162, 166 (2002). A petitioner alleging ineffective
assistance of counsel in violation of the Sixth Amendment
must ordinarily meet the standard established by the Supreme
Court in Strickland v. Washington, 466 U.S. 668
(1984). Under this standard, the petitioner must show both
deficient performance and prejudice-that "counsel made
errors so serious that counsel was not functioning as the
'counsel' guaranteed the defendant by the Sixth
Amendment," id. at 687, and that "there is
a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different," id. at 694.
asserting ineffective assistance of counsel, Armstrong
advances two claims: (1) her trial counsel was ineffective
because he did not argue that her 2010 conviction in the
United States District Court for the District of Columbia of
armed bank robbery does not constitute a crime of violence
for purposes of the career offender enhancement of the United
States Sentencing Guidelines, U.S.S.G. § 4B1.1(a); and
(2) he did not argue mitigating factors at sentencing.
definition of a "crime of violence" under the
career offender provision of the Guidelines is an offense
punishable by imprisonment for more than 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 murder, voluntary manslaughter, kidnapping,
aggravated assault, a forcible sex offense, robbery, arson,
extortion," or certain firearm or explosives offenses.
U.S.S.G. § 4B1.2(a). The first prong, the force clause,
closely mirrors the force clause in the definition of
"crime of violence" under § 924(c).
See 18 U.S.C. § 924(c)(3)(A.. As discussed
above, the Fourth Circuit has held that federal armed bank
robbery is a crime of violence under the force clause of
§ 924(c). McNeal, 818 F.3d at 157. In so
ruling, the court noted that the § 924(c) force clause
is "nearly identical" to the force clause under
U.S.S.G § 4B1.2(a), and that the Fourth Circuit had
previously held that federal bank robbery under 18 U.S.C.
§ 2113(a) is a crime of violence, based on the force
clause, for purposes of the career offender enhancement.
McNeal, 818 F.3d at 152 (citing United States v.
Davis, 915 F.2d 132, 133 (4th Cir. 1990)). Under these
circumstance,, the Court finds that based on the reasoning of
McNeal, federal bank robbery is a crime of violence
for career offender purposes.
Armstrong argues that the limitations on the modified
categorical approach imposed by Mathis v. United
States, 136 S.Ct. 2243, 2253 (2016), could allow for a
finding that federal bank robbery is not a crime of violence
because at least one form of it may not have force as an
element, see 18 U.S.C.§2113(a) (including as
bank robbery entering a bank with the intent to commit any
felony affecting the bank), several United States Courts of
Appeals have, since Mathis, treated the form of
federal bank robbery requiring force, violence, or
intimidation, 18 U.S.C. § 2113(a), as divisible and have
found that it is a crime of violence for purposes of the
career offender enhancement under either the force clause or
the enumeration clause of U.S.S.G. § 4B1.2(a)(2,, which
includes in its definition crimes that meet the generic
definition of robbery. See, e.g., United States v.
Moore, 916 F.3d 231, 239 (2d Cir. 2019) (finding that
federal bank robbery is a crime of violence because it meets
the generic definition of robbery); United States v.
Ellison, 866 F.3d 32, 35 (1st Cir. 2017) (holding that
federal bank robbery is a crime of violence under the force
clause); United States v. Wilson, 880 F.3d 80, 84-85
(3d Cir. 2018). Here, Armstrong was charged under the force,
violence, or intimidation form of §2113(a). Moreover,
Armstrong's prior conviction was for armed bank
robbery, under 18 U.S.C. § 2113(d), which unquestionably
is a crime of violence because it requires that the defendant
"assaults any person, or puts in jeopardy the life of
any person by the use of a dangerous weapon or
device[.]" 18 U.S.C. § 2113(d). Thus, any failure
by trial counsel to argue that Armstrong's prior federal
armed bank robbery conviction was not a crime of violence was
neither deficient performance nor prejudicial to Armstrong.
Armstrong argues that her trial counsel was ineffective
because he failed to argue mitigating factors, specifically,
her mental health issues. In fact, with his sentencing
memorandum, trial counsel submitted under seal a 24-page
mental health evaluation from Dr. Neil Blumberg that
diagnosed Armstrong with several mental health conditions.
ECF No. 45-3. At the sentencing'- although understandably
refraining from discussing such sensitive personal
information in open court, trial counsel referenced Dr.
Blumberg's report several times, addressed her
"mental health struggles" from childhood and
through a family tragedy, and discussed other mitigating
factors such as her record as a "model prisoner"
and her post-offense rehabilitation. Sentencing Tr. 15-19,
ECF No. 55-2. The Court, in fact, relied in part on the
presentation about her mental health issues in granting a
significant downward variance, from a Guidelines range of 292
to 365 months to a 168-month sentence (14 years) that was in
the lower part of the jointly recommended sentencing range,
as part of a plea agreement under Federal Rule of Criminal
Procedure II(c)(1)(C), of 13 to 18 years. Id. at
23-24. Where the Court relied on trial counsel's
presentation in granting a downward variance and lenient
sentence, the Court finds that trial counsel's
performance on this issue was neither deficient nor
prejudicial to Armstrong. The Court will therefore deny the
Motion as to ineffective assistance of counsel.
Certificate of Appealability
has no absolute entitlement to appeal a district court's
denial of the Motion. See 28 U.S.C. § 2253(c)(1)(B.. To
appeal this Court's denial of the Motion, Armstrong must
obtain a certificate of appealability ("COA").
Id. A COA may issue "only if the applicant has
made a substantial showing of the denial of a constitutional
right." Id.§2253(c)(2). When a district
court reaches the merits, as it has here, a petitioner must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong. Slack v. McDaniel,529 U.S. 473, 484
(2000). Because Armstrong has made no such showing, this
Court will not issue a COA. Although this Court declines to
issue a COA, Armstrong may ...