UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Rafael Beamud
v. Civil No. 16-cv-298-JD
Opinion No. 2017 DNH 006
United States of America
O R D E R
Rafael Beamud moved to vacate his conviction and sentence
pursuant to 28 U.S.C. § 2255.1 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 not apply.
Background
Beamud 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
1 Although Beamud initially was proceeding pro se, counsel was
appointed to represent him. Counsel filed an amended petition
on his behalf.
of supervised release. Judgment was entered on October 14,
2015. Beamud did not appeal his conviction or sentence.
Discussion
A 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.
A. Motion to Vacate
The 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.
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The 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
§ 4B1.2(a).
Beamud 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
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in part on Kucinski v. United States, 2016 WL 4444736 (D.N.H.
Aug. 23, 2016).
The 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.
B. Certificate of Appealability
In the 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
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could disagree with the district court’s resolution of his
constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003);
accord Welch v. United States,
136 S. Ct. 1257, 1263-64 (2016).
Beamud contends that the court should grant a certificate
of appealability to permit the First Circuit to address the
issue of whether a violation of §§ 2118(a) and (c)(1) is a crime
of violence for purposes of § 924(c)(3)(A). Beamud makes no
argument that jurists of reason could disagree about the issue,
but instead asks this court to allow the issue to be reviewed by
the First Circuit. Under these circumstances, whether the issue
should proceed further would be more appropriately decided by
the First Circuit. See, e.g., Rivera-Rivera v. United States,
827 F.3d 184, 186-87 (1st Cir. 2016); Casiano-Jimenez v. United
States,
817 F.3d 816, 819 (1st Cir. 2016).
Conclusion
For the foregoing reasons, the government’s motion to
dismiss the petition (document no. 8) is granted. The amended
petition (document no. 6) is dismissed.
The court declines to issue a certificate of appealability.
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The clerk of court shall enter judgment accordingly and
close the case.
SO ORDERED.
__________________________
Joseph DiClerico, Jr.
United States District Judge
January 10, 2017
cc: Bjorn R. Lange, Esq.
Seth R. Aframe, Esq.
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