Final Report and Recommendation — Encines Felipe Surles v. United States (N.D. Ga., Dkt. 273, filed 02/01/17)

Summary

This is a Final Report and Recommendation by a magistrate judge on a pro se motion to vacate under 28 U.S.C. § 2255 filed by movant Encines Felipe Surles, in Criminal Action No. 1:03-CR-81-TWT-LTW-4. It states that in 2003 he pled guilty to three counts of armed bank robbery and one count of using a firearm in furtherance of armed bank robbery, and that in 2004 he was sentenced to a total of thirty years. His one claim relies on Johnson v. United States and the residual clause of the career offender guideline. The report agrees with Respondent that armed bank robbery is a crime of violence under the other portion of the definition, citing In re Hines. It recommends that the motion to dismiss be granted, the motion be dismissed, and a certificate of appealability be denied.

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“Final Report and Recommendation — Encines Felipe Surles v. United States (N.D. Ga., Dkt. 273, filed 02/01/17).” Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-1-03-cr-00081-dkt-273-n-d-ga-fced7f5ec1/, SHA-256 a54b7ebf982d24ed2718a96181d5dab79cd5dcd4a34c6065a06e3688977aa53f.

Full text

Case 1:03-cr-00081-TWT-LTW Document 273 Filed 02/01/17 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION

ENCINES FELIPE SURLES, ..
.. MOTION TO VACATE
Movant, ..
.. 28 U.S.C.§ 2255
.
..
.

v. ..
.. CRIMINAL ACTION NO.
..
.. 1:03-CR-81-TWT-LTW-4
..
..
UNITED STATES OF AMERICA, .
.. CIVIL ACTION NO.
.

Respondent. ..
.. 1:16-CV-2259-TWT-LTW

FINAL REPORT AND RECOMMENDATION

Movant is a federal prisoner who, pro se, challenges his sentence under 28

U.S.C.§ 2255. (Docs. 260, 262.)1 Respondent moved to dismiss the§ 2255 motion.

(Doc. 271.) Movant did not file a response to the motion to dismiss.

In 2003, Movant pied guilty, pursuant to a negotiated plea agreement, to three

counts of armed bank robbery and one count of using a firearm in furtherance of

armed bank robbery. (Docs. 174, 267.) In 2004, the Court sentenced Movant to

twenty-three years' imprisonment for the armed bank robberies and a consecutive

seven years' imprisonment for the firearm crime, yielding a total sentence of thirty

years' imprisonment. (Docs. 198, 268.) Movant did not appeal.

1 All citations to the record are to 1:03-cr-81-TWT-LTW.

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In determining Movant's sentence, the Court found that the career offender

provision of the U.S. Sentencing Guidelines (the "Guidelines") applied. (Doc. 268.)

That provision is as follows:

A defendant is a career offender if (1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense of
conviction; (2) the instant offense of conviction is a felony that is either
a crime of violence or a controlled substance offense; and (3) the
defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.

U.S. Sentencing Guidelines Manual§ 4B 1.1(a) (2003). When Movant was sentenced,

defined "crime of violence" as

any 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 ofphysical injury to another.

Id. § 4B l .2(a) (emphasis added). The italicized language in§ 4B 1.2(a)(2) is referred

to as the "residual clause."

Movant asserts one claim in his§ 2255 motion. (Doc. 260 at 4.) That claim is

that the Court violated his constitutional right to due process when it "relied on the

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'residual clause' of section 4B1.2(a)(1) to characterize his instant offense of

conviction as a 'crime ofviolence' to subject him to an enhanced penalty" under the

Guidelines. (Id.) Movant grounds his claim on the U.S. Supreme Court's decision in

Johnson v. United States, 135 S. Ct. 2551 (2015).

In Johnson, the Supreme Court held that the residual clause of the Armed

Career Criminal Act's ("ACCA") definition of"violent felony" is too vague and, thus,

using that clause to enhance a sentence under the ACCA violates due process.

Johnson, 135 S. Ct. at 2555, 2563; see 18 U.S.C. § 924(e)(2)(B) (ACCA's definition

of "violent felony"). The Supreme Court held that the new rule it announced in

Johnson applies retroactively to cases on collateral review. Welch v. United States,

136 S. Ct. 1257, 1268 (2016).

The residual clause in the ACCA's definition of"violent felony" is identical to

the residual clause in the Guidelines' definition of"crime ofviolence." Compare 18

U.S.C. § 924(e)(2)(B), with U.S. Sentencing Guidelines Manual § 4B1.2(a) (2003).

Movant thus argues that Johnson's holding applies to the Guidelines and renders his

sentence unconstitutional. (Doc. 260 at 4; Doc. 262.)

Respondent counters that Movant's offense ofconviction - armed bank robbery

- qualified as a "crime of violence" under the first portion of the Guidelines'

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definition of that term and that the residual clause thus played no role in his status as

a career offender.2 (Doc. 271.) Respondent relies on the U.S. Court of Appeals for

the Eleventh Circuit's recent decision that armed bank robbery is a "crime of

violence" under a statute that defines that term as including crimes that have "as an

element the use, attempted use, or threatened use of physical force against the person

or property of another." In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016); see 18

U.S.C. § 924(c)(3). The first portion of§ 924(c)(3)'s definition of"crime ofviolence"

is identical to the Guidelines' definition except that the statute contains the additional

words "or property." Compare 18 U.S.C. § 924(c)(3)(A), with U.S. Sentencing

Guidelines Manual § 4B1.2(a)(1) (2003). The additional words are not relevant here.

The Court agrees with Respondent. The court of appeals held in Hines that "a

conviction for armed bank robbery clearly meets the requirement for an underlying

felony offense, as set out in § 924(c)(3)(A), which requires the underlying offense to

include as an element, 'the use, attempted use, or threatened use of physical force

against the person or property of another."' Hines, 824 F.3d at 1337. As discussed

above, the Guidelines define "crime of violence" in materially the same manner as

2 Respondent does not challenge the timeliness ofMovant's § 2255 motion
or seek to dismiss it based on the appeal waiver in Movant's plea agreement. (Doc.
271.) Respondent seeks to preserve such defenses, however. (Id. at 5 & n.4.)

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§ 924(c)(3)(A). Movant's conviction for armed bank robbery thus would be a crime

of violence under the Guidelines, and he thus would be a career offender, "even if

Johnson renders the 'crime ofviolence' [residual clause] definition in [the Guidelines]

unconstitutional." See id. In short, the issue of whether the residual clause in the

Guidelines' definition of "crime of violence" is unconstitutional - the only issue

Movant raised in his § 2255 motion - is irrelevant because Movant's armed bank

robberies were crimes of violence under the other portion of the Guidelines' definition

of the term.3 See id.; see also In re Sams, 830 F.3d 1234, 1239-41 (11th Cir. 2016)

(holding that bank robbery "by force and violence or by intimidation," even when the

robber is unarmed, is a crime of violence without regard to the residual clause).

Accordingly, the undersigned RECOMMENDS that Respondent's motion to

dismiss [271] be GRANTED, that Movant's § 2255 motion [260] be DISMISSED,

and that civil action number 1:16-cv-2259-TWT-LTW be DISMISSED. The

undersigned further RECOMMENDS that a certificate of appealability be DENIED

3 Movant's cites to several decisions by federal courts outside the Eleventh
Circuit also are not relevant because the Court is bound by Hines. (See Doc. 262 at
5-10.) Movant did not cite any case holding that armed bank robbery in violation
of federal law is not a crime of violence under the Guidelines' career offender
provision. (See id.)

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because the dispositive issue is not reasonably debatable and Movant has not

substantially shown that he was denied a constitutional right. See 28 U.S.C.

T. WALKER
D STATES MAGISTRATE JUDGE

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