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Chasse v. United States

United States District Court, D. New Hampshire

September 15, 2016

Patrick Chasse
v.
United States of America Opinion No. 2016 DNH 164

          Cathy J. Green, Esq., Seth R. Aframe, Esq.

          MEMORANDUM AND ORDER

          PAUL BARBADORO, UNITED STATES DISTRICT JUDGE

         18 U.S.C. § 924(c) punishes those who use a firearm during and in relation to “any crime of violence.” As used in § 924(c), “crime of violence” means a felony offense that either “has as an element the use, attempted use, or threatened use of physical force against the person or property of another, ” (the “force clause”), or “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, ” (the “residual clause”). 18 U.S.C. § 924(c)(3). In Johnson v. United States, 135 S.Ct. 2551 (2015), the United States Supreme Court held that the residual clause in 18 U.S.C. § 924(e)(2)(B)'s definition of “violent felony, ” which is similar to the residual clause in § 924(c), is unconstitutionally vague. The Court later made its holding in Johnson retroactive in Welch v. United States, 136 S.Ct. 1257 (2016).

         Patrick Chasse, the petitioner here, pleaded guilty to several offenses in 2011, including two counts of “us[ing], carr[ying], and brandish[ing]” a firearm “during and in relation to a crime of violence, ” in violation of 18 U.S.C. § 924(c). The underlying “crime[s] of violence” for those § 924(c) convictions were federal bank robbery and pharmacy robbery.[1]Chasse has since filed a 28 U.S.C. § 2255 motion to vacate his § 924(c) convictions, arguing that Johnson requires a conclusion that § 924(c)'s residual clause is unconstitutionally vague, and that federal bank robbery and pharmacy robbery are not crimes of violence under § 924(c)'s force clause.

         The government opposes Chasse's motion. It argues that Chasse procedurally defaulted on this claim by failing to raise it previously, and that he cannot show the cause and actual prejudice needed to excuse his default. In particular, the government contends that Chasse cannot establish prejudice, because federal bank robbery and pharmacy robbery are both crimes of violence under § 924(c)'s force clause. Therefore, according to the government, even assuming that Johnson renders § 924(c)'s residual clause unconstitutional, Chasse is not entitled to § 2255 relief.[2]

         I. BACKGROUND

         During the fall of 2010, Patrick Chasse and two co-conspirators committed a series of armed robberies. Following those crimes, in June 2011, a grand jury returned a twenty-eight-count superseding indictment against Chasse and his associates. See Superseding Indictment, United States v. Chasse, No. 11-cr-52-PB (D.N.H. June 8, 2011), Doc. No. 32. The indictment included two 18 U.S.C. § 924(c) charges against Chasse, Counts Five and Twenty.[3] See Presentence Investigation Report at 1-2, United States v. Chasse, No. 11-cr-52-PB (D.N.H. May 10, 2012), Doc. No. 84 (Sealed).

         The § 924(c) counts stemmed from two incidents. Count Five resulted from a September 2010 robbery at a TD Bank branch in Manchester, New Hampshire. Superseding Indictment at 5, United States v. Chasse, No. 11-cr-52-PB (D.N.H. June 8, 2011), Doc. No. 32. The underlying “crime of violence” for Count Five was federal bank robbery, 18 U.S.C. § 2113(a) and (d) (Count Three). Id. at 3. Count Twenty was based on a November 2010 robbery at a Rite Aid Pharmacy in Manchester. Id. at 20. The underlying “crime of violence” for Count Twenty was pharmacy robbery, 18 U.S.C. § 2118(a) and (c)(1) (Count Eighteen). Id. at 18.

         In September 2011, Chasse pleaded guilty to a number of the charges against him, including the two § 924(c) counts, and the underlying federal bank robbery and pharmacy robbery charges. He was later sentenced to a total term of imprisonment of 239 months and one day -- a 120 month sentence on Count Five, a 119 month sentence on Count Twenty, and a one day sentence on all other counts. Judgment at 3, United States v. Chasse, No. 11-cr-52-PB (D.N.H. May 25, 2012), Doc. No. 91. The sentences on Counts Five and Twenty were ordered to be served consecutively to each other and to the other counts, pursuant to § 924(c)(1)(A).

         II. ANALYSIS

         Chasse seeks to vacate his § 924(c) convictions, claiming that § 924(c)'s residual clause is unconstitutionally vague in light of Johnson v. United States, 135 S.Ct. 2551 (2015), and that federal bank robbery and pharmacy robbery do not qualify as “crimes of violence” under § 924(c)'s force clause. The government responds that Chasse procedurally defaulted on this claim by failing to raise it previously, and that he cannot demonstrate the cause and prejudice required to excuse that default. To put these arguments into context, I begin by describing Johnson and § 924(c), then outline the procedural default rule, and finally turn to the government's assertion that federal bank robbery and pharmacy robbery constitute “crimes of violence” under § 924(c)'s force clause.

         A. Johnson and § 924(c)

         In Johnson, the Supreme Court addressed the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2). Federal law prohibits a felon from possessing a firearm. 18 U.S.C. § 922(g); Welch, 136 S.Ct. at 1261. Pursuant to the ACCA, a felon who possesses a firearm after three or more ...


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