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United States v. Caballero

United States District Court, M.D. Pennsylvania

February 21, 2017

UNITED STATES OF AMERICA
v.
JONATHAN LEE CABALLERO

          MEMORANDUM

          SYLVIA H. RAMBO United States District Judge

         Before the court is Jonathan Lee Caballero's (“Caballero”) motion to correct sentence pursuant to 28 U.S.C. § 2255 in light of Johnson v. United States, 135 S.Ct. 2551 (2015). Caballero pleaded guilty to possessing, brandishing, and discharging firearms in furtherance of a crime of violence (bank robbery), and aiding and abetting that offense, in violation of 18 U.S.C. § 924(c) (Count 2); and attempted bank robbery, in violation of 18 U.S.C. § 2113(a) (Count 4). On January 13, 2009, Caballero was sentenced to 120 months imprisonment on the § 924(c) offense to be served consecutive to a 57 month sentence on the § 2113(a) offense. In his motion, Caballero argues that the sentence on Count 2 violates due process and should be vacated because bank robbery is not a crime of violence under Johnson. (Doc. 346, p. 2.)

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. The ACCA defines a violent felony, in part, as follows:

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [“elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [“enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [“residual clause”].

18 U.S.C. § 924(e)(2)(B) (emphasis added).

         Title 18 U.S.C. § 924 (c)(3) defines a crime of violence as follows:

         [A]n offense that is a felony and-

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another [“elements clause”], or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense [“residual clause”].

         Caballero argues that clause B is similar to the residual clause of the ACCA and is therefore void for vagueness.[1]

         I. Discussion

         In United States v. Robinson, 844 F.3d 137, 139 (3d Cir. 2016), the Third Circuit held that, where the offenses of robbery and brandishing a gun have been tried together and the defendant has been found guilty of both offenses, Hobbs Act robbery qualified as a crime of violence under ยง 924(c)(3)(A)'s elements ...


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