United States District Court, S.D. Ohio, Eastern Division
OPINION & ORDER
ALGENON L. MARBLEY JUDGE
matter is before the Court on Petitioner's Motion to
Alter or Amend Judgment (Doc. 208), filed pursuant to
Rule 59(e) of the Federal Rules of Civil Procedure,
requesting reconsideration of the dismissal of his
Amended Motion to Vacate under 28 U.S.C. §
2255. Petitioner also asks that the Court withhold
ruling on the motion pending resolution of the appeal in
United States v. Arthur Smith, Case No. 16-6720,
which is currently pending in the United States Court of
Appeals for the Sixth Circuit. For the reasons that follow,
Petitioner's Motion to Alter or Amend Judgment
(Doc. 208) is DENIED.
challenges, in this second or successive § 2255 motion
to vacate, his 210-month sentence and characterization as a
career offender under § 4B1.1 and § 4B
1.2(a) of the United States Sentencing
Guidelines. That characterization, and the consequent
sentence, were based on Petitioner's prior robbery
convictions. See Presentence Investigation Report,
¶¶ 108, 110. Petitioner based his challenge in this
action on Johnson v. United States, __ U.S. __, 135
S.Ct. 2551 (2015) (holding that the "residual
clause" of 18 U.S.C. § 924(e)(2)(B)(ii) of the
Armed Career Criminal Act ("ACCA") is
unconstitutionally vague). Amended Motion to Vacate under
28 U.S.C. § 2255 (Doc. 201, PageID# 492). On March
16, 2017, this Court dismissed the Amended Motion to
Vacate under 28 U.S.C. § 2255, based on the United
States Supreme Court's decision in Beckles v. United
States, 580 U.S. __, 137 S.Ct. 886 (2017), which held
that the United States Sentencing Guidelines, including 4B
1.2(a), are not subject to vagueness challenges.
Order (Doc. 207).
now seeks reconsideration of that dismissal, arguing that, as
applied to his case, and in view of United States v.
Gardner, 823 F.3d 793, 803-04 (4th Cir. 2016) (holding
that a conviction for North Carolina common law robbery
categorially does not qualify as a "violent felony"
under the ACCA), the residual clause of U.S.S.G. § 4B
1.2(a)(2) is so vaguely worded that it cannot provide the
basis for concluding that Petitioner's 1991 North
Carolina robbery conviction constitutes a crime of violence
under the Sentencing Guidelines. Petitioner further argues
that the Supreme Court's decision in Beckles
does not foreclose his request for relief in this action
because he has demonstrated grounds for relief under
Johnson on the premise that the residual clause of
§ 4B 1.2(a)(2) is unconstitutionally vague as applied in
extent that Petitioner moves under Rule 59(e) of the Federal
Rules of Civil Procedure, this Court has the authority to
resolve his request for reconsideration. See Howard
v. United States, 533 F.3d 472 (6th Cir. 2008)
(holding that the limitations on successive motions under
Rule 60(b) of the Federal Rules of Civil Procedure do not
apply to true motions under Rule 59). See also Gonzalez
v. Crosby, 545 U.S. 524 (2005). However, "[s]uch a
motion is extraordinary and is seldom granted 'because it
contradicts notions of finality and repose."'
Thompson v. Kline, No. 4:16-cv-1926, 2017 WL
1166128, at *2 (N.D. Ohio March 29, 2017) (citing
Mitchell v. Citizens Bank, No. 3:10-00569, 2011 WL
247421, at *1 (M.D. Tenn. Jan. 26, 2011)). Moreover, a motion
for reconsideration is disfavored and unfounded unless it
calls "attention to an argument or controlling authority
that was overlooked or disregarded in the original ruling,
presents evidence or argument that could not previously have
been submitted, or successfully points out a manifest error
of fact or law." Davie v. Mitchell, 291
F.Supp.2d 573, 634 (N.D. Ohio 2003). "A motion to alter
or amend judgment under Rule 59(e) may be granted for a clear
error of law, newly discovered evidence, an intervening
change in controlling law, or to prevent manifest
injustice." McBee v. United States, Nos.
3:95-cr-82-RLF-RPM-1, 3:l6-cv- 582-RLJ, 2017 WL 888336, at *3
(E.D. Tenn. Mar. 6, 2017) (citing GenCorp, Inc. v. Am.
Int'l Underwriters, 178 F.3d 804, 834 (6th
Cir. 1999)). "It is improper to use the motion or to
relitigate old matters, or to raise arguments or present
evidence that could have been raised prior to the entry of
judgment.'" Id. (quoting Exxon Shipping
Co. v. Baker, 554 U.S. 471, 486 n.5 (2008)).
motion offers no basis for reconsideration of the dismissal
of his § 2255 motion. Petitioner asks mat the Court
withhold ruling on this motion pending the outcome of the
appeal in United States v. Arthur Smith, No.
16-6720. In Smith, the United States District Court
for the Eastern District of Tennessee had held that
"North Carolina common law robbery categorically
qualifies as a crime of violence under the use-of-force
clause" of the United States Sentencing Guidelines; the
District Court did not apply the "residual clause"
of § 4B 1.2(a)(2). United States v. Smith, No.
3:13-CR-5-TAV-CCS-3, 2016 6875877 (E.D. Tenn. Nov. 21, 2016).
The District Court found the reasoning of Garner,
also referred to by Petitioner, to be flawed, and further
All federal courts of appeals which have considered robbery
offenses that, like North Carolina robbery, require more
force than mere purse snatching have concluded that such
offenses qualify as either crimes of violence or violent
felonies under the use-of-force clause. See Duncan,
833 F.3d 754-57 (Indiana robbery); United States v.
Jenkins, 651 F.App'x 920, 927 (11th Cir. 2016)
(Florida robbery); United States v. Maxwell, 823
F.3d 1057, 1061 (7th Cir. 2016) (Minnesota robbery);
United States v. Lamb, 638 F.App'x 575, 577 (8th
Cir. 2016) (Michigan unarmed robbery); United States v.
Elliott, 757 F.3d 492, 496 (6th Cir. 2014) (Kentucky
first-degree robbery); United States v. Wiggan, 530
F.App'x 51, 57 (2d Cir. 2013) (Connecticut first-degree
robbery); United States v. Nigg, 667 F.3d 929, 937
(7th Cir. 2012) (Arizona robbery); United States v.
Forrest, 611 F.3d 908, 911 (8th Cir. 2010) (Colorado
robbery); United States v. Brown, 437 F.3d 450, 452
(5th Cir. 2006) (Louisiana simple robbery); United States
v. Thomas, 280 F.3d 1149, 1159 (7th Cir. 2002) (Georgia
robbery); United States v. Tirrell, 120 F.3d 670,
680 (7th Cir. 1997) (Michigan attempted unarmed robbery);
United States v. Cornish, 103 F.3d 302, 309 (3d Cir.
1997) (Pennsylvania third-degree robbery); United States
v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990)
Id. at *6. Moreover,
Application Note 1 to § 4B 1.2 provides that
"robbery" is a crime of violence. U.S.S.G. §
4B1.2, cmt. n.l. The Sixth Circuit has consistently held that
the offenses listed in Application Note 1 are categorically
crimes of violence. E.g., United States v. Cooper,
739 F.3d 873, 878 (6th Cir. 2014). To determine whether a
particular state offense qualifies as robbery as included in
Application Note 1, the Court must consider whether that
offense "fall[s] within the generic definition of the
crime, which is found by surveying how the crime is described
across jurisdiction, as well as consulting the Model Penal
Code." United States v. Rede-Mendez, 680 F.3d
552, 556 (6th Cir. 2012). In analyzing whether North Carolina
common law robbery falls within the generic definition of the
crime, courts have held that it does and, thus, held that the
robbery is categorically a crime of violence. See United
States v. Moore, 223 F.App'x 422, 424 (5th Cir.
2007); United States v. Woods, 169 F.App'x 790,
791 (4th Cir. 2006).
Id. at *7.
the weight of authority would suggest that Petitioner's
1991 North Carolina robbery conviction qualifies as a crime
of violence without reference to the so-called "residual
clause" of the Guideline. Under these circumstances,
Johnson does not assist Petitioner.
Johnson only invalidated the residual clause of the
Armed Career Criminal Act; the Court made it quite clear that
its decision did "not call into question ... the
remainder of the [ACCA's] definition of violent felony,
" i.e., the use-of-physical-force and
enumerated-offense clauses of that Act. Johnson, 135
S.Ct. at 2563. Thus, the Guidelines' use-of-force
definition in § 4B1.2(a)(1) and the enumerated offenses
listed in § 4B1.2(a)(2) likewise remain viable.
Bollinger v. United States, Nos.
2:09-cr-105-JRG-MCLC-1, 2:13-cv-255-JRG, 2017 WL 397571, at
*5 (E.D. Tenn. Jan. 27, 2017). Further, Petitioner does not
refer to, and this Court is unable to locate, any cases that
would serve to distinguish ...