United States District Court, D. New Hampshire
R. Lange, Esq. Seth R. Aframe, Esq.
DiClerico, Jr. United States District Judge
Beamud moved to vacate his conviction and sentence pursuant
to 28 U.S.C. § 2255. In support, he argues that his
conviction based on his guilty plea to violating 18 U.S.C.
§ 924(c)(1)(A) must be vacated based on Johnson v.
United States, 135 S.Ct. 2551 (2015). The government
moves to dismiss the petition on the ground that Johnson does
pled guilty to using and carrying a firearm during a crime of
violence in violation of § 924(c)(1)(A) and controlled
substances robbery using a dangerous weapon in violation of
18 U.S.C. §§ 2118(a) and (c)(1). Beamud was
sentenced to 300 months and one day of imprisonment, to be
followed by five years of supervised release. Judgment was
entered on October 14, 2015. Beamud did not appeal his
conviction or sentence.
federal prisoner may move to vacate on the grounds that his
“sentence was imposed in violation of the Constitution
or laws of the United States.” § 2255(a). Beamud
contends that his sentence must be vacated because his
conviction under § 924(c)(1)(A) is invalid. In support,
Beamud argues that his conviction for violating §
2118(a) and (c)(1) did not constitute a crime of violence, as
required by § 924(c)(1)(A), and the alternative residual
clause, § 924(c)(3)(B), has been held to be
unconstitutional in Johnson.
Motion to Vacate
government moves to dismiss Beamund's motion to vacate
his conviction on the ground that Beamud's crime of
aggravated robbery of controlled substances, in violation of
§ 2118(c)(1), qualifies as a crime of violence for
purposes of § 924(c)(1)(A). As a result, the government
contends, Johnson does not affect Beamud's conviction.
Beamud objects to dismissal, arguing that a violation of
§ 2118(c)(1) does not meet the definition of a crime of
violence under the force clause of § 924(c), §
924(c)(3)(A), leaving only § 924(c)(3)(B), which has
been invalidated by Johnson.
government relies on Judge Barbadoro's analysis of the
same issue in Chasse v. United States, 2016 WL
4926154 (D.N.H. Sept. 15, 2016). In response, Beamud notes
that the First Circuit has not addressed the issue and that
it can be argued that use of a gun during a pharmacy robbery
is not a crime of violence within the meaning of §
924(c). Specifically, Beamud relies on United States v.
Tavares, 843 F.3d 1, 12-20 (1st Cir. 2016), which
considered whether the Massachusetts crime of assault and
battery with a dangerous weapon, Massachusetts General Laws
Chapter 265, § 15A(b), qualified as a crime of violence
for purposes of United States Sentencing Guidelines
argues that his use of a gun while robbing a CVS pharmacist
did not rise to the level of violent physical force. Section
924(c) provides that “the term ‘crime of
violence' means an offense that is a felony and . . . has
an element the use, attempted use, or threatened use of
physical force against the person or property of
another.” § 924(c)(3)(A). In Chasse, Judge
Barbadoro found that pharmacy robbery in violation of §
2118(c)(1), like bank robbery in violation of § 2113,
qualified as a crime of violence for purposes of §
924(c)'s force clause. 2016 WL 4926154, at *5-*6. That
decision relied in part on Kucinski v. United
States, 2016 WL 4444736 (D.N.H. Aug. 23, 2016).
undersigned finds the analyses in Kucinski and Chasse
persuasive. See also Gibson v. United States, 2016
WL 6408233, at *5 (E.D. Tenn. Oct. 28, 2016) (citing other
cases finding that violations of § 2118 meet the force
clause definition under § 924(c)). Beamud's
conviction of pharmacy robbery, in violation of §§
2118(a) and (c)(1), constitutes a crime of violence under the
force clause, § 924(c)(3)(A). For that reason, the
residual clause of § 924(c) is not implicated, and the
decision in Johnson does not affect Beamud's conviction.
Beamud has not provided grounds to support his motion to
vacate under § 2255.
Certificate of Appealability
event his petition would be denied, Beamud asks the court to
grant him a certificate of appealability. An unsuccessful
petitioner under § 2255 may appeal only if a circuit
justice or the district court issues a certificate of
appealability. 28 U.S.C. § 2253(c)(1). “A
certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the
denial of a constitutional right.” § 2253(c)(2). A
petitioner makes a substantial showing if he demonstrates
“that jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issues ...