Case Information
*1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________
)
UNITED STATES OF AMERICA )
) v. ) Criminal No. 02-0008 (PLF) ) Civil Action No. 16-1181 (PLF) JESSE TOUSSAINT ANDERSON, )
)
Defendant. )
____________________________________)
MEMORANDUM OPINION AND ORDER
On July 10, 2025, the Court denied defendant Jesse Toussaint Anderson’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Def. Mot.”) [Dkt. No. 22],
as amended by his Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255
(“Def. Supp.”) [Dkt. No. 25]. See United States v. Anderson (“Anderson”), Criminal No. 02-008
(PLF),
I. BACKGROUND
The Court presumes familiarity with the history of this case, which is described at
length in the Court’s recent opinion. See Anderson,
On January 9, 2002, a grand jury returned a five-count indictment against Jesse
Toussaint Anderson: two counts of armed bank robbery in violation of 18 U.S.C. §§ 2113(a)
and (d) (Counts One and Three), two counts of use of a firearm during and in relation to a crime
of violence in violation of 18 U.S.C. § 924(c) (Counts Two and Four), and one count of
unlawful possession of a firearm and ammunition by a convicted felon in violation of 18 U.S.C.
§§ 922(g) and 924(e) (Count Five). See Indictment [Dkt. No. 7]. Regarding Count Two, the
grand jury alleged that the “crime of violence” underlying Mr. Anderson’s Section 924(c) charge
was the armed bank robbery specified in Count One. See Indictment at 2. On March 15, 2002,
Mr. Anderson pled guilty to Counts One, Two, and Five of the indictment: one count of armed
bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) (Count One), one count of use of a
firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)
(Count Two), and unlawful possession of a firearm and ammunition by a convicted felon in
violation of 18 U.S.C. §§ 922(g) and 924(e) (Count Five). See Plea Agreement [Dkt. No. 20].
The Presentence Investigation Report (“PSR”) prepared before Mr. Anderson’s
sentencing hearing listed nine prior criminal convictions, including a 1992 conviction for
Maryland robbery with a deadly weapon, a 1993 conviction for Maryland possession of a
controlled dangerous substance with intent to distribute, and a 1997 conviction for
Maryland robbery with a deadly weapon. See Anderson,
Mr. Anderson was convicted under the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. *3 § 924(e), the PSR classified him as an “armed career criminal” for purposes of determining his offense level under the United States Sentencing Guidelines (“U.S.S.G.”). See Anderson, 2025 WL 2046406, at *1. At an offense level of 31 and a Criminal History category of VI, the PSR determined that Mr. Anderson’s sentencing guidelines range for Counts One and Five grouped together was between 188 and 235 months of imprisonment, to run concurrently, plus an additional mandatory minimum term of 84 months for his Section 924(c) charge under Count Two, to run consecutively. See id. at *2; see also 18 U.S.C. § 924(c)(l)(A)(ii). On May 29, 2002, Judge Richard W. Roberts sentenced Mr. Anderson to an aggregate term of 384 months in prison: 300 months on Counts One and Five grouped, and 84 months on Count Two. See Judgment in a Criminal Case (“Judgment”) [Dkt. No. 12] at 1. Judge Roberts ordered that the sentences for Counts One and Five run concurrently, while the 84-month sentence on Count Two—the Section 924(c) charge—would run consecutively. See Judgment at 2. Mr. Anderson is currently projected to be released from the Federal Bureau of Prisons on December 8, 2030. See Inmate Locator, F EDERAL B UREAU OF P RISONS , https://www.bop.gov/mobile/find_inmate/index.jsp (search for Reg. No. 24604-016).
On June 20, 2016, Mr. Anderson filed a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, challenging his conviction under 18 U.S.C. § 924(c), his sentence under the ACCA, see 18 U.S.C. § 924(e), and his sentence under U.S.S.G. § 2K2.1. See Def. Mot. On October 26, 2016, Mr. Anderson supplemented his Section 2255 motion, arguing that in light of the Supreme Court’s decision in Johnson v. United States, 576 U.S. 591 (2015), he does not qualify as an armed career criminal and is ineligible for a sentencing enhancement under U.S.S.G. § 2K2.1(a)(2) because his prior convictions for Maryland robbery with a deadly weapon do not qualify as “violent felonies” or “crimes of *4 violence.” Def. Supp. at 3-4. Mr. Anderson further argued that he is “actually innocent” of the Section 924(c) charge because federal armed bank robbery in violation of 18 U.S.C. §§ 2113(a) and (d) is not a “crime of violence” under Section 924(c)’s elements clause. Def. Supp. at 4-5.
On July 10, 2025, this Court denied Mr. Anderson’s Section 2255 motion.
See Anderson,
Lastly, the Court considered whether federal armed bank robbery under 18 U.S.C.
§§ 2113(a) and (d) is a “crime of violence” under Section 924(c)(3)’s elements clause. See 2025
WL 2046406, at *7-10. The Court turned first to United States v. Burwell (“Burwell”), 122
F.4th 984 (D.C. Cir. 2024), in which the D.C. Circuit held that federal bank robbery under
Section 2113(a) is not categorically a “crime of violence” under Section 924(c)(3)’s elements
clause because a defendant could commit federal bank robbery by “extortion,” as well as by
“force and violence.” Anderson,
But in Burwell, the court of appeals expressly declined to consider whether
federal armed bank robbery under Section 2113(d) is categorically a “crime of violence” under
Section 924(c)(3)’s elements clause. See Anderson,
Mr. Anderson appealed the Court’s decision on September 3, 2025, see Notice of Appeal, but the D.C. Circuit ordered his appeal to be held in abeyance pending a determination from this Court as to whether a certificate of appealability is warranted. See Order of USCA.
II. LEGAL STANDARD
In a proceeding brought under 28 U.S.C. § 2255, the applicant cannot take an
appeal unless a circuit judge or district judge first issues a certificate of appealability. See F ED . R. A PP . P. 22(b)(1). A certificate of appealability may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
*6
such a showing, Mr. Anderson “need not show that he should prevail on the merits . . . . Rather,
he must demonstrate that the issues are debatable among jurists of reason; that a court could
resolve the issues [in a different manner]; or that the questions are adequate to deserve
encouragement to proceed further.” United States v. Mitchell (“Mitchell”),
III. DISCUSSION
In Anderson, the Court held that Maryland armed robbery qualifies as a “violent
felony” under the ACCA’s elements clause and a “crime of violence” under Section 4B1.2’s
identical elements clause. See
In Burwell, the D.C. Circuit held that Section 2113(a)—which criminalizes bank
robbery “by force and violence, or by intimidation,” or “by extortion,”—does not qualify as a
“crime of violence” under Section 924(c)(3)’s elements clause because the first paragraph of the
statute is “indivisible as to extortion,” and “extortion need not involve the use or threat of force.”
Burwell,
and bank extortion, and bank robbery under Section 2113(a) qualifies as a “crime of violence”
under Section 924(c)(3)’s elements clause. See United States v. Watson,
Given the D.C. Circuit’s recent departure from its sister circuits on the issue of
whether bank robbery under Section 2113(a) is a “crime of violence,” and the circuit’s express
reservation of the question of whether armed bank robbery under Section 2113(d) is a “crime of
violence,” see Burwell,
finds that armed bank robbery under Sections 2113(a) and (d) does not qualify as a “crime of violence” under Section 924(c)(3)’s elements clause, then Mr. Anderson’s Section 924(c) conviction would not be predicated on a qualifying “crime of violence” and he would be entitled to relief on his Section 924(c) claim. Under these circumstances, the Court finds that a certificate of appealability is warranted. See 28 U.S.C. § 2253(c)(2). Accordingly, it is hereby