United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
D. Beach, a federal inmate proceeding pro se,
submitted this motion under 28 U.S.C. § 2255 to vacate,
set aside, or correct his sentence (u§ 2255
Motion, " ECF No. 192). In his § 2255 Motion, Beach
raises the following claims for relief:
Claim One: Pursuant to Johnson v. United States, 135
S.Ct. 2551 (2015), Beach's convictions under 18 U.S.C.
§ 924(c)(1) are no longer constitutional. (§ 2255
Claim Two: "Counsel was ineffective under Sixth
Amendment for not challenging the Government's lack of
evidence supporting and/or showing that it has legislative
jurisdiction over the geographical location of the bank in
question and/or the lack of evidence supporting and/or
showing th[at] its application of the federal bank
robbery-act against Beach was within the scope and/or bounds
of legislative intent." (Id. at 11.)
Claim Three: "Counsel was ineffective under the Sixth
Amendment for not raising the issue of whether the bank is
FDIC insured." (Id. at 14.)
Government has responded that Beach's claims lack merit.
(ECF No. 201.) Beach filed a "MOTION FOR LEAVE TO FILE
TRAVERSE" (ECF No. 203) will be granted to the extent
that the Court will consider Beach's "ANNEXED &
EXHIBITED PROPOSED REPLY-TRAVERSE" ("Reply."
ECF No. 204). For the reasons set forth below, Beach's
§ 2255 Motion will be denied.
March 23, 2015, Justin D. Beach pled guilty to Bank Robbery
and Aiding and Abetting Bank Robbery, in violation of 18
U.S.C. §§ 2113(a) and 2 (Count One), and Possession
and Discharge of a Firearm in Furtherance of a Crime of
Violence and Aiding and Abetting, in violation of 18 U.S.C.
§§ 924(c) and 2 (Count Two). (Plea Agreement 1, ECF
No. 71.) The Court sentenced Beach to 30 months of
imprisonment on Count One and 120 months of imprisonment on
Count Two to run consecutively. (J. 2, ECF No. 143.)
Claim One, Beach contends that, pursuant to Johnson,
his convictions under 18 U.S.C. § 924(c)(1) are no
longer constitutional. In Johnson, the Supreme Court
held "that imposing an increased sentence under the
residual clause of the Armed Career Criminal Act
[("ACCA")] violates the Constitution's
guarantee of due process." 135 S.Ct. at
2563. In Welch v. United States, 136
S.Ct. 1257 (2016), the Supreme Court held that
"Johnson announced a substantive rule of law
that has retroactive effect in cases on collateral
review." Id. at 1268.
however, Beach was never subject to a sentence enhancement
under the ACCA. Rather, Beach seeks to extend
Johnson to invalidate his convictions under 18
U.S.C. § 924(c)(1)(A), which provides:
Except to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during and in relation to
any crime of violence or drug trafficking crime (including a
crime of violence or drug trafficking crime that provides for
an enhanced punishment if committed by the use of a deadly or
dangerous weapon or device) for which the person may be
prosecuted in a court of the United States, uses or carries a
firearm, or who, in furtherance of any crime, possesses a
firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime - -
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not ...