United States District Court, E.D. Virginia, Alexandria Division
Ellis, III United States District Judge.
issue in this 18 U.S.C. § 2255 habeas petition is
whether defendant's convictions and sentences for two
counts of brandishing a firearm during a crime of violence
should be vacated on the basis of (i) an alleged
"sentencing miscalculation, " or (ii) the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015), which invalidated the residual clause
of 18 U.S.C. § 924(e). For the reasons that follow, the
petition must be denied.
March 12, 2014, defendant James Thomas Link pled guilty to
two counts of brandishing a firearm during a "crime of
violence"-namely, armed bank robbery-in violation of 18
U.S.C. § 924(c). On the first § 924(c) count,
defendant was sentenced to 102 months' imprisonment. On
the second § 924(c) count, defendant was sentenced to a
consecutive term of 318 months' imprisonment, for a total
term of 420 months of incarceration.
years later, defendant, proceeding pro se, has moved
pursuant to 28 U.S.C. § 2255 to vacate and set aside his
sentences and convictions. Defendant asserts two grounds for
his motion: (i) that a "sentencing miscalculation"
occurred, resulting in the imposition of an "incorrect
sentence" under the terms of defendant's plea
agreement, and (ii) that the Supreme Court's decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
operates to invalidate § 924(c)'s residual clause
and thus, by extension, defendant's § 924(c)
convictions. The government disagrees, contending (i) that
defendant's "sentencing miscalculation" claim
is not cognizable under § 2255 and is barred by the
doctrine of procedural default, and (ii) that defendant's
convictions and sentences are based not on §
924(c)'s residual clause, but on § 924(c)'s
force clause, a provision unaddressed and unaffected by the
Supreme Court's decision in Johnson.
the matter has been fully briefed and the facts and law are
fully set forth in the existing record, neither oral argument
nor an evidentiary hearing would aid the decisional process.
Accordingly, the matter is now ripe for disposition. For the
reasons stated below, defendant's motion must be denied.
sworn Statement of Facts accompanying his plea agreement
describes a crime spree in which defendant, along with
co-defendants James Larry McNeal and Alphonso Importantly,
§ 2255(b) provides that a hearing is unnecessary where,
as here, "the motion and the files of the case
conclusively show that the prisoner is entitled to no relief
T.1" 18 U.S.C. Â§ 2255(b). Stoddard, robbed or attempted
to rob four banks in Maryland and Northern Virginia from
October to December, 2013. The spree began on October 29,
2013, when defendant attempted an armed bank robbery at the
Wells Fargo Bank branch located at 110 Congressional Lane in
Rockville, Maryland. That day, McNeal drove defendant and
Stoddard to the Wells Fargo Bank branch. Defendant and
Stoddard entered the bank through the front door, which
defendant then propped open with a sand-filled sock. Once
inside the bank, defendant displayed a handgun and shouted,
"Everyone get down and don't push the button."
Stoddard jumped over the teller counter and unsuccessfully
tried to take cash from the teller drawers. As Stoddard
jumped back over the counter to leave, defendant fired one
round from his handgun into the bank ceiling. The two then
very next day, October 30, 2013, McNeal drove Stoddard and
defendant to the Bank of Georgetown branch located at 1850
Towers Crescent Plaza in Vienna, Virginia. After defendant
and Stoddard entered the bank, Stoddard vaulted over the
counter toward the victim teller, demanding, "Give me
the money." For his part, defendant displayed a handgun,
pointing the weapon at the floor in view of the victim teller
while telling Stoddard, "Get the money, " and
"Let's go, come on let's go." Stoddard
grabbed cash from the teller drawers and placed it in a
black, plastic shopping bag. Stoddard and defendant then fled
the bank on foot with $3, 449 in cash.
four weeks later, on November 25, 2013, defendant and his
accomplices struck again. This time, McNeal drove Stoddard
and defendant to the Wells Fargo Bank branch located at 2213
North Glebe Road in Arlington, Virginia. After defendant and
Stoddard entered the bank lobby, defendant, brandishing a
firearm, ordered the bank's customers and employees to
lie down on the floor. At the same time, Stoddard jumped the
teller counter and, brandishing a gun, ordered the employees
behind the counter to lie down. Stoddard then stuffed $19,
001 in cash into his bag. As defendant and Stoddard left the
bank with that money, they pushed past an 82-year-old woman,
knocking her to the ground.
capped off the year and this spree with one more bank
robbery. On New Year's Eve, December 31, 2013, McNeal
picked up defendant and Stoddard and drove to the Wells Fargo
Bank branch located at 951 South George Mason Drive in
Arlington, Virginia. After defendant and Stoddard entered the
bank, defendant produced a handgun and Stoddard jumped over
the counter. Stoddard then took approximately $47, 913 in
cash from the teller drawers and stuffed it into his bag.
Defendant and Stoddard fled from the bank on foot, entered
the vehicle with McNeal, but failed in their attempt to drive
away because they were apprehended.
February 27, 2014, a federal grand jury indicted defendant on
seven counts, including conspiracy in violation of 18 U.S.C.
§ 371 (Count 1), armed bank robbery in violation of 18
U.S.C. §§ 2, 2113(a) & (d) (Counts 2, 4, and
6), and brandishing a firearm during a crime of violence in
violation of § 18 U.S.C. § 924(c)(1)(A)(ii) (Counts
3, 5, and 7). United States v. James Thomas Link,
l:14-cr-76 (E.D. Va. Feb. 27, 2014) (Indictment). For each
§ 924(c) count, the indictment specifically identified
the predicate "crime of violence" as the preceding
§ 2113 bank robbery count. For instance, Count 4 alleged
that on November 25, 2013, defendant committed a bank
robbery, in violation of § 2113(a) & (d). In turn,
Count 5 charged defendant with violating § 924(c) for
brandishing a firearm during a crime of violence-namely, the
robbery charged in Count 4. Similarly, Count 6 charged
defendant with a separate § 2113 bank robbery, and Count
7-the accompanying § 924(c) charge-specifically
incorporated Count 6 as the underlying "crime of
violence" for the § 924(c) offense.
March 20, 2014, defendant pled guilty pursuant to a plea
agreement to two counts (Counts 5 and 7) of brandishing a
firearm during a crime of violence, in violation of §
924(c). See United States v. James Thomas Link, No.
1:14-cr-76 (E.D. Va. Mar. 20, 2014) (Plea Agreement). As the
plea agreement explained, the mandatory minimum term of
imprisonment for Count 5 was seven years with a maximum term
of life imprisonment, and the mandatory minimum term of
imprisonment for Count 7 was a consecutive sentence of 25
years, with a maximum of life in prison. The plea agreement
further explained that
[D]efendant understands that the Court has jurisdiction and
authority to impose any sentence within the statutory maximum
described above but that the Court will determine the
defendant's actual sentence in accordance with Title 18,
United States Code, Section 3553(a). The defendant
understands that the Court has not yet determined a sentence
and that any estimate of the advisory sentencing range under
the U.S. Sentencing Commission's Sentencing Guidelines
Manual the defendant may have received from the
defendant's counsel, the United States, or the Probation
Office, is a prediction, not a promise, and is not binding on
the United States, the Probation Office, or the Court.
Additionally, pursuant to the Supreme Court's decision in
United States v. Booker, 543 U.S. 220 (2005), the
Court, after considering the factors set forth in Title 18,
United States Code, Section 3553(a), may impose a sentence
above or below the advisory sentencing range, subject only to
review by higher courts for reasonableness. The United States
makes no promise or representation concerning what sentence
the defendant will receive, and the defendant cannot withdraw
a guilty plea based upon the actual sentence.
Id. at 3.
of his plea agreement, defendant also "knowingly
waive[d] the right to appeal the conviction and any sentence
within the statutory maximum ... (or the manner in which that
sentence was determined)... on any ground whatsoever, in
exchange for the concessions made by the United States in
this plea agreement." Id. at 4. Defendant
further agreed "to cooperate fully and truthfully with
the United States, " including by "testifying]
truthfully and completely at any grand juries, trials or
other proceedings." Id. at 6. In return, the
government agreed "to recommend a sentence no higher
than the mandatory minimum term of 32 years" and, upon
the Court's acceptance of defendant's plea, "to
move to dismiss the remaining counts of the indictment
against this defendant." Id. at 4, 6. The plea
agreement also provided that if defendant violated any
provision of the agreement, the government "will be
released from its obligations under th[e] agreement,
including any obligation to seek a downward departure
[whereas] defendant, however, may not withdraw the guilty
plea entered pursuant to this agreement." Id.
at 11. In addition, the agreement stated that any breach by
defendant would amount to a "waive[r of] any right to
claim that... the statement of facts accompanying this
agreement. .. should be excluded or suppressed under Fed R.
Evid. 410, Fed R. Crim. P. 11(f), the Sentencing Guidelines
or any other provision of the Constitution or federal
law." Id. at 12.
March 20, 2014 plea hearing began with defendant swearing
under penalty of perjury to answer truthfully the questions
put to him during the plea colloquy. Defendant was then
questioned extensively to ensure that his plea of guilty was
knowing and voluntary. See United States v.
James Thomas Link, No. 1:14-cr-76 (E.D. Va. Jun. 19,
2014) (Transcript of Proceedings Held on March 20, 2014).
Specifically, defendant was informed of the mandatory minimum
terms of imprisonment of seven and twenty five years'
imprisonment, to run consecutively, for the two § 924(c)
counts to which defendant was pleading guilty. Defendant was
also reminded that
[t]he plea agreement . . . provides that you understand that
the Court has the power, the jurisdiction to impose any
sentence on you up to the statutory maximum which is life
imprisonment for each of the offenses, that you understand
that your sentence has not yet been determined. It will be
determined by the Court in accordance with the law which
provides that the Sentencing Guidelines are advisory, not
mandatory as they once were. And any estimate you've
received from your counsel or from anybody, those are merely
estimates. They are not promises. They are not assurances.
Id. at 16. In addition, defendant was further
reminded that "there's no other agreement as to how
the guidelines might apply to your case." Id.
Court also directly addressed defendant's agreement with
the government regarding sentence recommendations:
THE COURT: Now, you and the government have also agreed that
the government will not recommend the imposition of any
sentence on you above the mandatory minimum for each of the
MR. LINK: Yes, sir.
THE COURT: What that means is that the government won't
recommend more than seven years on Count 5 and 25 years on
Count 7 to run consecutively. Do you understand that?
MR. LINK: Yes, sir, Your Honor.
THE COURT: But do you also understand that that agreement you
and the government have reached isn't binding on the
Court. I could reach a different result.
MR. LINK: Yes, sir, Your Honor.
THE COURT: Now, you understand that even after the Court
determines what advisory guideline range applies to your
case, that even then, the Court has the power, the authority,
to impose a sentence that is either less severe than the
guideline range or more severe than the guideline range, but
it can never be less than the mandatory minimum of seven
years on Count 5 and 25 years consecutively on Count 7. Do
you understand that?
MR. LINK: Yes, sir, Your Honor.
Id. at 28-29. Additionally, the Court reviewed with
defendant the plea agreement's appellate waiver, as well
as defendant's obligation to cooperate "fully and
truthfully with the United States, " including by
"testify[ing] truthfully and completely at any grand
juries, trials, or other proceedings." Id. at
defendant stated that he understood the terms of the plea
agreement as summarized by the Court, and he further denied
under oath that anyone had "made any other or different
kind of promise or assurance ... of any kind whatsoever in an
effort to induce" a guilty plea. Id. at 26.
Defendant was then required to describe in his own words his
offense conduct and confirm that the sworn Statement of Facts
attached to his plea agreement was true and accurate in all
respects. Id. at 34-35, 39. Based on the plea colloquy,
the Court found that defendant's plea was knowing,
voluntary, and supported by an independent basis in fact
containing each of the essential elements of the offenses
charged in Counts 5 and 7. Id. at 40. Accordingly,
defendant's plea of guilty to Counts 5 and 7 was
accepted, and defendant was adjudged guilty of two counts of
brandishing a firearm during a crime of violence, in
violation of § 924(c). Id.
sentencing was initially set for June 6, 2014, but on that
date defendant requested a continuance to file a motion to
withdraw his guilty plea and to request the appointment of
new counsel. New counsel was appointed on June 9, 2014, and
on June 18, 2014, defendant filed a motion to withdraw his
guilty plea. An extensive evidentiary hearing was held,
during which defendant, defendant's former counsel, and
one of the lead investigators in the case testified. After
careful consideration of the testimony and arguments,
defendant's motion was denied and a written Order issued.
United States v. James Thomas Link, No. 1:14-cr-76
(E.D. Va. June 20, 2014) (Order). Defendant appealed the
denial of his motion to the Court of Appeals for the Fourth
Circuit, but the Court of Appeals affirmed, finding no error.
United States v. Link, 606 F.App'x. 80 (4th Cir.
2015). This judgment became final on July 9, 2015 with the
issuance of the Fourth Circuit's mandate of that date.
his motion was denied, defendant refused to testify at the
trial of his co-defendants, McNeal and Stoddard, in violation
of defendant's plea agreement. Consequently, on August 7,
2014, defendant was held in civil contempt, and the
government moved to hold defendant in breach of his plea
agreement, a motion that was fully briefed. At
defendant's September 19, 2014 sentencing hearing,
defendant was held in violation of his plea agreement. In
response, the government invoked the plea agreement's
provision stating that defendant's breach would excuse
the government's obligation to recommend the mandatory
minimum sentence. Accordingly, the government, rather than
seeking the mandatory minimum, pursued a life sentence for
defendant's § 924(c) convictions. Ultimately, a
sentence of 420 months' ...