989 F.3d 212
2d Cir.2021Background
- In 1997 Collier was convicted by a jury of attempted federal bank robbery (18 U.S.C. § 2113(a)), carrying/using a firearm in relation to a crime of violence (18 U.S.C. § 924(c)(1)), and related firearms and felon-in-possession counts.
- At sentencing (1998, under the then-mandatory 1997 Guidelines), the court treated Collier as a career offender under U.S.S.G. § 4B1.1 based on the federal attempted bank robbery plus two prior New York robbery convictions, producing a 270‑month sentence.
- Collier filed a § 2255 motion in June 2016 challenging (1) his § 924(c) conviction on the ground that attempted bank robbery is not a "crime of violence" and (2) the career-offender enhancement and vagueness of U.S.S.G. § 4B1.2; timeliness of some claims was disputed.
- The Second Circuit held the case pending related precedent; after decisions in Hendricks, Moore, Nunez, Hill, Davis, and others, the panel addressed merits and timeliness.
- The Court concluded attempted federal bank robbery under § 2113(a) (which expressly requires commission "by force and violence, or by intimidation") is categorically a "crime of violence" under the § 924(c) force clause (§ 924(c)(3)(A)), and it declined to reach Collier’s pre-Booker Guidelines vagueness claim as untimely per Nunez.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attempted federal bank robbery under 18 U.S.C. § 2113(a) is a "crime of violence" for § 924(c)(3)(A) (force clause) | Collier: attempt requires only intent + a substantial step and need not involve attempted or threatened physical force, so attempt is not categorically a crime of violence | Gov: § 2113(a) expressly requires the attempt be by "force and violence, or by intimidation," so attempt necessarily includes attempted force/intimidation and is a crime of violence | Held: Attempted § 2113(a) is categorically a crime of violence under § 924(c)(3)(A) (affirmed) |
| Whether the district court erred by applying the mandatory Guidelines career-offender enhancement (U.S.S.G. § 4B1.1) | Collier: his federal and NY robbery convictions do not qualify as "crimes of violence" under § 4B1.2; § 4B1.2 is unconstitutionally vague | Gov: contest merits; also argues timeliness bars review | Held: Court declines to reach merits of vagueness/§ 4B1.2 due to timeliness—Nunez controls; claim is untimely |
| Timeliness under 28 U.S.C. § 2255(f)(3) for Johnson-based challenges to pre-Booker Guidelines | Collier: Johnson (and Welch) made his challenges timely | Gov: challenge to pre-Booker Guidelines is not covered by Johnson; untimely | Held: Challenges to pre-Booker mandatory Guidelines residual clause are untimely under Nunez; court declines to reach those merits |
| Whether Hendricks and related precedent control | Collier: Hendricks does not resolve attempted § 2113(a) because attempt differs from completed robbery | Gov: Hendricks (and circuit cases) supports treating attempt as crime of violence here | Held: Hendricks controls; because § 2113(a) requires attempt by force/intimidation, Hendricks’ reasoning applies and resolves the § 924(c) claim in favor of the government |
Key Cases Cited
- United States v. Hendricks, 921 F.3d 320 (2d Cir. 2019) (held federal bank robbery under § 2113(a) is a crime of violence under § 924(c)(3)(A))
- Nunez v. United States, 954 F.3d 465 (2d Cir. 2020) (held Johnson did not recognize a right to challenge pre-Booker Career Offender Guideline residual clause; such § 2255 claims untimely)
- United States v. Hill, 890 F.3d 51 (2d Cir. 2018) (addressed § 924(c) force-clause analysis; panel amended after Dimaya)
- United States v. Moore, 916 F.3d 231 (2d Cir. 2019) (analyzed robbery offenses under U.S.S.G. § 4B1.2)
- Davis v. United States, 139 S. Ct. 2319 (2019) (held § 924(c)(3)(B) residual clause void for vagueness)
- Johnson v. United States, 576 U.S. 591 (2015) (held ACCA residual clause void for vagueness)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (applied Johnson to analogous statutory residual clause)