United States v. McGuire
678 F. App'x 643
10th Cir.
2017
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UNITED STATES of America, Plaintiff-Appellee, v. Patrick H. MCGUIRE, Defendant-Appellant.

No. 16-3282

United States Court of Appeals, Tenth Circuit

February 1, 2017

643

C. Evidentiary Hearing

We also agree with the district court that no evidentiary hearing is required. We review the denial оf an evidentiary hearing in a habeas proceeding for abuse of discretion. . An evidentiary hearing gives a habeas petitioner a chance to establish facts that allow her relief. See . But the district court was correct that there are no disputed facts that would win relief for Brown in the face of the twin legal challеnges of a state procedural bar and the limited nature of federal habeas review of state sentencing. Therefore, we affirm the district court‘s decision not to grant Brown a hearing.

CONCLUSION

For the reasons above, we deny Brown a COA on the district court‘s denial of his petition for a writ of habeas corpus and affirm the denial of his motion for an evidentiary hearing, and so dismiss the appeal.

James A. Brown, Jared S. Maag, Office of the United States Attorney, District of Kansas, Topeka, KS, Matthew T. Treaster, Office of the United States Attorney, District of Kansas, Wichita, KS, for Plaintiff-Appellee

Patrick H. McGuire, Pro Se

Before LUCERO, MATHESON, and BACHARACH, Circuit Judges.

ORDER DENYING CERTIFICATE OF APPEALABILITY*

Carlos F. Lucero Circuit Judge

Patrick McGuire seeks a certificate of appealаbility (“COA“) to appeal the district court‘s dismissal of his 28 U.S.C. § 2255 motion. We deny a COA and dismiss the appeal.

I

Following a jury trial in 1993, McGuire was convicted of aiding and abetting an armed bank robbery. He was acquitted on additional сharges of carrying a firearm during and in relation to a crime of violence and being a felon in possession of a firearm. The presentence investigatiоn report (“PSR“) recommended a sentence enhancement under U.S.S.G. § 4B1.1(B), based on findings that McGuire was at least eighteen years old at the time of his offense, he hаd two prior felony convictions involving crimes of violence, and his instant offense ‍​‌​‌​​​‌‌‌‌​​​‌‌​​​​​​‌‌‌​​​​​​​‌​​​​​‌​​‌​‌‌​‌‌‍qualified as a crime of violence under the Guidelines. The district court adopted the findings and recommendations in the PSR and sentenced McGuire to 25 years’ imprisonment.

McGuire filed his § 2255 motion in district court on May 31, 2016, arguing that his sentence should be vacated under . The district court denied relief, holding that McGuire had erroneously asserted he was convicted of carrying a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). The court further concluded that even if it construed McGuire‘s motion as challenging his sentence enhancement under the Guidelines’ career offender рrovisions, his bank robbery conviction constituted a crime of violence without reliance on the unconstitutional “residual clause” of U.S.S.G. § 4B1.2(1)(ii) (1989). The court declined tо issue a COA, which McGuire now seeks from this court.1

II

A movant may not appeal the denial of habeas relief under 28 U.S.C. § 2255 without a COA. § 2253(c)(1)(B). A COA will issue “only if the applicant has made a substantial showing of the denial of a constitutional right.” § 2253(c)(2). A movant meets this standard by demonstrating “that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further.” (quotations omitted).

In his application to this court, McGuire asserts that he was convicted of carrying a firearm during and in relation to a crime of violence under § 924(c), and that this conviction must be vacated in light of . But as the district court correctly noted, McGuire was not convicted of that charge. Accordingly, he has not stated a claim for relief.

Even construing McGuire‘s application liberally to assert that his sentence for the ‍​‌​‌​​​‌‌‌‌​​​‌‌​​​​​​‌‌‌​​​​​​​‌​​​​​‌​​‌​‌‌​‌‌‍bank robbery conviction was unconstitutionally enhanced based on a finding that federal bank robbery constitutes a “crime of violence” under § 4B1.1,2 we conclude he has not made a substantial showing of the denial of a constitutional right. At the time of McGuire‘s conviction, § 4B1.2 defined a “crime of violence” as

any offense under federal or state law punishable by imprisonment for а term exceeding one year that (i) has as an element the use, attempted use, or threatened use of physical force against the person of аnother, or (ii) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physiсal injury to another.

(emphasis added). The second clause of subsection (ii) is identical to § 924‘s residual clause, which was held unconstitutionally vague in . Accordingly, if McGuire‘s sentence was enhanced under that provision, he could be entitled to relief. See (holding that the residual clause of § 4B1.2 is unconstitutionally vague).

As the district court concluded, however, McGuire‘s federal bank robbery conviction qualifies as a predicate offense under the elements clause of § 4B1.2(1)(i) because it contains, as an element, ‍​‌​‌​​​‌‌‌‌​​​‌‌​​​​​​‌‌‌​​​​​​​‌​​​​​‌​​‌​‌‌​‌‌‍the use or threatened use of force.3 Because § 2113(a) is divisible,4 we apply the modified categorical approach to determine which elements of the statute formed the basis of McGuire‘s conviction. See (stating that courts presented with a statute that “sets out one or more elements of the offense in the alternative” may look to certain types of documents, such as indictments and jury instructions, “to determine which alternative formed the basis of the defendant‘s prior conviction“). Review of the indictment and jury instructions from McGuire‘s criminal trial reveals that he was charged and convicted of aiding and abetting in the taking, by force and violence, and by intimidation, from the person or presence of another, approximately $85,256.00 belonging to a bank.

McGuire‘s crime of conviction thus has “as an element the use, attempted use, or threatеned use of physical force against the person of another.” § 4B1.2(1)(i). Although § 2113(a) includes a taking “by intimidation,” courts have stated that “intimidation” involves the threat of physical force. See, e.g., ; (unpublished) (“The Courts of Appeals have uniformly ruled that federal crimes involving takings ‘by force and violence, or by intimidation,’ have as an element the use, attempted use, or threatened use of physical force.“); cf. (holding that Colorado robbery, whether committed by force, or by threats or intimidation, “has as an element the use or threatened use of physical force against another“). Moreover, courts have consistently held that federal bank robbery qualifies as a predicate offense under the Guidelines’ elements clause. See, e.g., ; (unpublished); . Accordingly, even construing McGuire‘s application liberally, no reasonable ‍​‌​‌​​​‌‌‌‌​​​‌‌​​​​​​‌‌‌​​​​​​​‌​​​​​‌​​‌​‌‌​‌‌‍jurist would debate the district court‘s denial of habeas relief.

III

For the foregoing reasons, we DENY McGuire‘s application for a COA and DISMISS the appeal.

Notes

1
Although the PSR, judgment of conviction, indictment, and jury instructions from McGuire‘s criminal trial were not part of the record on appeal, we exercise our discretion to take judicial notice of these documents, which were publicly filed in prior proceedings in the district court or this court. See .
2
McGuire dоes not cite to § 4B1.1 in either his initial § 2255 motion or his application for a COA. However, he does argue that he was subject to a sentence enhancement under the “residual clause” of § 924(c), and that this clause was invalidated by Johnson. Section 4B1.2(1)(ii) of the Guidelines, which defines “crime of violence,” contains language identical tо the residual clause in § 924. Compare U.S.S.G. § 4B1.2(1)(ii) (1989), with 18 U.S.C. § 924(e)(2)(B)(ii). In construing McGuire‘s pro se filings liberally, we assume he meant to challenge the sentence enhancement imposed pursuant to § 4B1.1.
3
That MсGuire was convicted as an aider and abettor and not as a principal is irrelevant to our analysis. Under 18 U.S.C. § 2, “[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.”
4
Section 2113(a) includes at least two sets of divisible еlements: (1) taking, or attempting to take, by force, violence, or intimidation, property ‍​‌​‌​​​‌‌‌‌​​​‌‌​​​​​​‌‌‌​​​​​​​‌​​​​​‌​​‌​‌‌​‌‌‍from a bank; and (2) entering or attempting to enter any bank, credit union, or sаvings and loan association with the intent to commit a felony. See (noting that § 2113(a) “seems to contain a divisible set of elements, only some of which constitute violent felonies“).
*
This order is not binding precedent, еxcept under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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