IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION

LEE FRANK BANIEL, ) ) Petitioner, ) ) CIVIL ACTION NO. v. ) 2:18-CV-561-LSC-CSC ) (WO) UNITED STATES OF AMERICA, ) ) Respondent. )

RECOMMENDATION OF THE MAGISTRATE JUDGE

I. INTRODUCTION Before the court is Lee Frank Baniel’s motion to vacate, set aside, or correct sentence under

. Doc. # 1.1 For the reasons discussed below, the court recommends that Baniel’s § 2255 motion be denied without an evidentiary hearing and that this case be dismissed with prejudice. II. BACKGROUND In February 2006, Baniel pled guilty to aiding and abetting the robbery of a U.S. postal employee by putting the victim’s life in jeopardy through use of a dangerous weapon, in violation of

(a) and § 2 (Count 1), and possessing a firearm in furtherance of a crime of violence, in violation of

(c) (Count 2). Doc. # 12- 3. The predicate “crime of violence” for Baniel’s § 924(c) conviction under Count 2 was

1 References to document numbers (“Doc. #”) are to the document numbers of the pleadings, motions, and other materials in the court file as compiled and designated on the docket sheet by the Clerk of Court. Pinpoint citations are to the page of the electronically filed document in the court’s CM/ECF filing system, which may not correspond to pagination on the “hard copy” of the document presented for filing. the robbery charged in Count 1. See Doc. # 12-1 at 3. After a sentencing hearing on June 8, 2006, the district court sentenced Baniel to 272 months in prison, consisting of 188

months on Count 1 and 84 months on Count 2, the terms to run consecutively. Doc. # 12- 5. Baniel did not appeal. On May 23, 2018, Baniel filed this § 2255 motion claiming that, in light of Johnson v. United States,

(2015), and Sessions v. Dimaya,

(2018), the predicate crime for his § 924(c) a conviction,

(a) (robbery of a postal employee or “postal robbery”), is not “a crime of violence,” and thus his § 924(c)

conviction is invalid. Docs. # 1, 2. In Johnson, the Supreme Court held that the so called residual clause of the “violent felony” definition in the Armed Career Criminal Act (“ACCA”),

(e), is unconstitutionally vague. See

. In Dimaya, the Supreme Court applied the reasoning of Johnson to find that the residual clause of the “crime of violence” definition in

(b) is unconstitutionally

vague. See 138 S. Ct. at 1210–11. In July 2019, Baniel amended his § 2255 motion to argue that the Supreme Court’s recent decision in United States v. Davis,

(2019), renders the § 2114(a) postal robbery predicate offense for Count 2 no longer a “crime of violence” for purposes of § 924(c), thus invalidating his § 924(c) conviction. Doc. # 16.

Prior to the Supreme Court’s decision in Davis, under

(c)(3)(A) and (B), a “crime of violence” was an offense that is a felony and (A) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” or that (B) “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 former clause is referred to the “use-of-force” or “elements” clause, and the latter

clause as the “residual clause.” Davis,

. In Davis, the Supreme Court extended its decision in Johnson to § 924(c) and held that the residual clause in § 924(c)(3)(B), like the ACCA’s residual clause, is unconstitutionally vague, abrogating the Eleventh Circuit’s decision in Ovalles v. United States,

(11th Cir. 2018), which held the exact opposite. Davis,

. The Eleventh Circuit has since held that Davis announced a new rule of

constitutional law that applies retroactively to cases on collateral review. In re Hammond,

, 1038–40 (11th Cir. 2019). III. DISCUSSION Baniel relies on the Supreme Court’s decision in Davis to argue that his § 924(c) conviction is invalid. See Doc. # 16. But nothing in Davis’s holding regarding the

unconstitutionality of the residual clause of

(c)(3)(B)—and nothing in the holdings of Johnson and Dimaya—invalidates postal robbery under

(a)2 as a “crime of violence” under the use-of-force clause of

(c)(3)(A). In In

2 The postal robbery statute provides: A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail matter, money, or other property of the United States, or robs or attempts to rob any such person of mail matter, or of any money, or other property of the United States, shall, for the first offense, be imprisoned not more than ten years; and if in effecting or attempting to effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned not more than twenty- five years.

(a). re Watt,

(11th Cir. 2016), the Eleventh Circuit held that postal robbery under § 2114(a) is a “crime of violence” under § 924(c)(3)(A)’s use-of-force clause. See 829 F.3d

at 1289–90. That holding is dispositive of Baniel’s claim here. The district court in Dickerson v. United States,

, at *6 (M.D. Fla. Sept. 10, 2020), found Watt to be dispositive when rejecting a claim identical to the one raised by Baniel. The district court observed that “robbery under § 2114(a) . . . has as an element the taking of property ‘by means of force and violence’ or ‘by means of intimidation,’ Pattern Crim. Jury Instr. 11th Cir. OI O77 (2016), which necessarily

encompasses the use, attempted use, or threatened use of physical force.” Dickerson,

, at *6. The § 2114(a) robbery in Dickerson was like Baniel’s in another respect: it had as an element the putting of the victim’s life in jeopardy by use of a dangerous weapon. The district court in Dickerson stated: And if that were not enough, the fact that Dickerson admitted to the additional element of putting the victims’ lives in jeopardy by using a dangerous weapon, i.e., a loaded .40 caliber gun, doubtlessly introduced the use, attempted use, or threatened use of physical force as an element. See Plea Agreement at 56, 18–19, 22–23. In United States v. Enoch, the Seventh Circuit held that robbery under § 2114(a), where the defendant used a dangerous weapon, is a crime of violence under § 924(c)(3)(A) because of the element of putting the victim’s life in jeopardy through the use of a deadly weapon.

, 580–82 (7th Cir. 2017). Likewise, in the bank robbery context, the Eleventh Circuit has found that the use of a dangerous weapon to effect the robbery, in conjunction with taking the property by force and violence or by fear, made the offense a “crime of violence” under § 924(c)(3)’s use-of-force clause. In re Hines,

, 1336–37 (11th Cir. 2016). Accordingly, Dickerson’s § 924(c) conviction and sentence did not depend on § 924(c)(3)(B) because both of his convictions under Counts Three and Five qualify as a “crime of violence” under § 924(c)(3)(A).

, at *6. A federal prisoner raising a claim under Davis cannot show he was sentenced under § 924(c)(3)(B)’s residual clause if current binding precedent establishes that his predicate

offense qualifies as a crime of violence under the use-of-force clause in § 924(c)(3)(A). See In re Pollard,

(11th Cir. 2019). Watt is binding precedent in this circuit. Therefore, nothing in Davis (or in Johnson or Dimaya) provides relief for Baniel’s § 924(c) conviction. See Smith v. United States,

, at *5–6 (N.D. Ala. May 5, 2020) (also relying on Watt as binding precedent in rejecting a claim identical to Baniel’s).

Finally, it makes no difference that the predicate crime of violence for Baniel’s § 924(c) conviction was aiding and abetting the § 2114(a) postal robbery. The Eleventh Circuit has repeatedly held that where the companion substantive offense qualifies as a crime of violence under § 924(c)(3)(A)’s use-of-force clause, aiding and abetting the companion substantive offense equally qualifies as a crime of violence under the use-of-

force clause. See Watt, 829 F.3d at 1289–90; Steiner v. United States,

(11th Cir. 2019); In re Smith,

, 1280–81 (11th Cir. 2016); In re Colon,

(11th Cir. 2016). Baniel’s aiding and abetting the § 2114(a) postal robbery charged in Count 1 qualified as a crime of violence under the use-of-force clause in § 924(c)(3)(A). Therefore, his § 924(c) conviction under Count 2 remains valid.

IV. CONCLUSION Accordingly, for the reasons stated above, it is the RECOMMENDATION of the Magistrate Judge that the

motion filed by Baniel be DENIED and this case DISMISSED with prejudice. It is further ORDERED that the parties shall file any objections to this Recommendation by

May 27, 2021. A party must specifically identify the factual findings and legal conclusions in the Recommendation to which objection is made; frivolous, conclusive, or general objections will not be considered. Failure to file written objections to the Magistrate Judge’s findings and recommendations under

(b)(1) shall bar a party from a de novo determination by the District Court of legal and factual issues covered in the Recommendation and waives the right of the party to challenge on appeal the District

Court’s order based on unobjected-to factual and legal conclusions accepted or adopted by the District Court except upon grounds of plain error or manifest injustice. Nettles v. Wainwright,

(5th Cir. 1982); 11TH CIR. R. 3-1. See Stein v. Lanning Securities, Inc.,

(11th Cir. 1982). See also Bonner v. City of Prichard,

(11th Cir. 1981) (en banc).

DONE this 13th day of May, 2021. /s/ Charles S. Coody CHARLES S. COODY UNITED STATES MAGISTRATE JUDGE