Beamud v. USA

2017 DNH 006

• Court: District Court, D. New Hampshire
• Decided: January 10, 2017
• Docket: 16-cv-298-JD
• Status: Published

Opinion

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.

2 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

3 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

4 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.

5 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.