UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

____________________________________ ) UNITED STATES OF AMERICA ) ) v. ) Criminal No. 02-0008 (PLF) ) Civil Action No. 16-1181 (PLF) JESSE TOUSSAINT ANDERSON, ) ) Defendant. ) ____________________________________)

MEMORANDUM OPINION AND ORDER

On July 10, 2025, the Court denied defendant Jesse Toussaint Anderson’s Motion

Under

to Vacate, Set Aside, or Correct Sentence (“Def. Mot.”) [Dkt. No. 22],

as amended by his Supplemental Motion to Vacate Judgment Under

(“Def. Supp.”) [Dkt. No. 25]. See United States v. Anderson (“Anderson”), Criminal No. 02-008

(PLF),

(D.D.C. July 10, 2025); see also Opinion and Order [Dkt. No. 68].

Mr. Anderson appealed the Court’s decision on September 3, 2025. See Notice of Appeal [Dkt.

No. 69]. However, “an appeal may not be taken to the court of appeals from . . . the final order

in a proceeding under section 2255 . . . [u]nless a circuit justice or judge issues a certificate of

appealability.”

(c)(1)(B). Accordingly, on September 5, 2025, the D.C. Circuit

ordered Mr. Anderson’s appeal to be held in abeyance pending a determination from this Court

as to whether a certificate of appealability is warranted. See Order of USCA [Dkt. No. 71].

Upon careful consideration of the relevant legal authorities, and for the reasons

explained below, the Court finds that a certificate of appealability is warranted in this case. I. BACKGROUND

The Court presumes familiarity with the history of this case, which is described at

length in the Court’s recent opinion. See Anderson,

, at *1-3. What follows

is an overview of the facts relevant to the Court’s issuance of a certificate of appealability.

On January 9, 2002, a grand jury returned a five-count indictment against Jesse

Toussaint Anderson: two counts of armed bank robbery in violation of

(a)

and (d) (Counts One and Three), two counts of use of a firearm during and in relation to a crime

of violence in violation of

(c) (Counts Two and Four), and one count of

unlawful possession of a firearm and ammunition by a convicted felon in violation of

(g) and 924(e) (Count Five). See Indictment [Dkt. No. 7]. Regarding Count Two, the

grand jury alleged that the “crime of violence” underlying Mr. Anderson’s Section 924(c) charge

was the armed bank robbery specified in Count One. See Indictment at 2. On March 15, 2002,

Mr. Anderson pled guilty to Counts One, Two, and Five of the indictment: one count of armed

bank robbery in violation of

(a) and (d) (Count One), one count of use of a

firearm during and in relation to a crime of violence in violation of

(c)

(Count Two), and unlawful possession of a firearm and ammunition by a convicted felon in

violation of

(g) and 924(e) (Count Five). See Plea Agreement [Dkt. No. 20].

The Presentence Investigation Report (“PSR”) prepared before Mr. Anderson’s

sentencing hearing listed nine prior criminal convictions, including a 1992 conviction for

Maryland robbery with a deadly weapon, a 1993 conviction for Maryland possession of a

controlled dangerous substance with intent to distribute, and a 1997 conviction for

Maryland robbery with a deadly weapon. See Anderson,

, at *2. Because

Mr. Anderson was convicted under the Armed Career Criminal Act (“ACCA”), see 18 U.S.C.

2 § 924(e), the PSR classified him as an “armed career criminal” for purposes of determining his

offense level under the United States Sentencing Guidelines (“U.S.S.G.”). See Anderson,

, at *1. At an offense level of 31 and a Criminal History category of VI, the PSR

determined that Mr. Anderson’s sentencing guidelines range for Counts One and Five grouped

together was between 188 and 235 months of imprisonment, to run concurrently, plus an

additional mandatory minimum term of 84 months for his Section 924(c) charge under

Count Two, to run consecutively. See

; see also

(c)(l)(A)(ii).

On May 29, 2002, Judge Richard W. Roberts sentenced Mr. Anderson to an

aggregate term of 384 months in prison: 300 months on Counts One and Five grouped,

and 84 months on Count Two. See Judgment in a Criminal Case (“Judgment”) [Dkt. No. 12]

at 1. Judge Roberts ordered that the sentences for Counts One and Five run concurrently, while

the 84-month sentence on Count Two—the Section 924(c) charge—would run consecutively.

See Judgment at 2. Mr. Anderson is currently projected to be released from the Federal Bureau

of Prisons on December 8, 2030. See Inmate Locator, FEDERAL BUREAU OF PRISONS,

https://www.bop.gov/mobile/find_inmate/index.jsp (search for Reg. No. 24604-016).

On June 20, 2016, Mr. Anderson filed a motion to vacate, set aside, or correct his

sentence under

, challenging his conviction under

(c), his

sentence under the ACCA, see

(e), and his sentence under U.S.S.G. § 2K2.1.

See Def. Mot. On October 26, 2016, Mr. Anderson supplemented his Section 2255 motion,

arguing that in light of the Supreme Court’s decision in Johnson v. United States,

(2015), he does not qualify as an armed career criminal and is ineligible for a

sentencing enhancement under U.S.S.G. § 2K2.1(a)(2) because his prior convictions for

Maryland robbery with a deadly weapon do not qualify as “violent felonies” or “crimes of

3 violence.” Def. Supp. at 3-4. Mr. Anderson further argued that he is “actually innocent” of the

Section 924(c) charge because federal armed bank robbery in violation of

(a)

and (d) is not a “crime of violence” under Section 924(c)’s elements clause. Def. Supp. at 4-5.

On July 10, 2025, this Court denied Mr. Anderson’s Section 2255 motion.

See Anderson,

, at *10. First, the Court noted that in United States v. Redrick

(“Redrick”),

(D.C. Cir. 2016), the D.C. Circuit held that Maryland robbery with a

deadly weapon, or “Maryland armed robbery,” qualifies as a “violent felony” under the ACCA’s

elements clause. See Anderson,

, at *5 (citing Redrick,

).

This Court therefore rejected Mr. Anderson’s arguments to the contrary. See id. at *3-6.

Second, “for the same reasons that Redrick forecloses Mr. Anderson’s argument

that Maryland robbery with a deadly weapon does not qualify as a ‘violent felony’ under the

ACCA’s elements clause,” the Court found that Redrick also forecloses Mr. Anderson’s

argument that Maryland robbery with a deadly weapon is not a “crime of violence” under

U.S.S.G. § 4B1.2’s identical elements clause. See id. at *6 (citing United States v. Freeman,

, 8 (D.C. Cir. 2019) (explaining that “Redrick makes clear that Maryland robbery with

a dangerous weapon is a crime of violence under the [Sentencing] Guidelines.”)).

Lastly, the Court considered whether federal armed bank robbery under

(a) and (d) is a “crime of violence” under Section 924(c)(3)’s elements clause. See

, at *7-10. The Court turned first to United States v. Burwell (“Burwell”),

(D.C. Cir. 2024), in which the D.C. Circuit held that federal bank robbery under

Section 2113(a) is not categorically a “crime of violence” under Section 924(c)(3)’s elements

clause because a defendant could commit federal bank robbery by “extortion,” as well as by

“force and violence.” Anderson,

, at *8 (citing Burwell, 122 F.4th at 986).

4 But in Burwell, the court of appeals expressly declined to consider whether

federal armed bank robbery under Section 2113(d) is categorically a “crime of violence” under

Section 924(c)(3)’s elements clause. See Anderson,

, at *8 (citing

Burwell, 122 F.4th at 989 n.1). And because Mr. Anderson was convicted of federal armed bank

robbery under both Section 2113(a) and Section 2113(d), it was “left to this Court to resolve the

question of whether federal armed bank robbery under Section 2113(d)” is categorically a “crime

of violence” under Section 924(c)(3)’s elements clause. Anderson,

, at *8.

The Court concluded that it is. See Anderson,

, at *10.

Specifically, the Court determined that the least culpable conduct criminalized under

Section 2113(d)—“assault[ing] a person . . . by the use of a dangerous weapon or device,”

see

(d)—“easily satisfies Section 924(c)(3)’s elements clause because it ‘has as

an element the use, attempted use, or threatened use of physical force.’” Anderson,

, at *9 (quoting

(c)(3)(A)). And because Mr. Anderson’s

Section 924(c) conviction was predicated on a qualifying “crime of violence,” the Court found

that Mr. Anderson was “not entitled to relief on his Section 924(c) claim.” See

.

Mr. Anderson appealed the Court’s decision on September 3, 2025, see Notice of

Appeal, but the D.C. Circuit ordered his appeal to be held in abeyance pending a determination

from this Court as to whether a certificate of appealability is warranted. See Order of USCA.

II. LEGAL STANDARD

In a proceeding brought under

, the applicant cannot take an

appeal unless a circuit judge or district judge first issues a certificate of appealability. See FED.

R. APP. P. 22(b)(1). A certificate of appealability may issue “only if the applicant has made a

substantial showing of the denial of a constitutional right.”

(c)(2). To make

5 such a showing, Mr. Anderson “need not show that he should prevail on the merits . . . . Rather,

he must demonstrate that the issues are debatable among jurists of reason; that a court could

resolve the issues [in a different manner]; or that the questions are adequate to deserve

encouragement to proceed further.” United States v. Mitchell (“Mitchell”),

(D.C. Cir. 2000) (quoting Barefoot v. Estelle,

(1983)) (emphasis and

alterations in original); see also Miller-el v. Cockrell,

(2003); Slack v.

McDaniel,

(2000); United States v. Duran, Criminal No. 94-0447

(PLF),

, at *2 (D.D.C. Aug. 5, 2025); United States v. Clark, Criminal

No. 10-0133 (PLF),

, at *1 (D.D.C. Sept. 16, 2019).

III. DISCUSSION

In Anderson, the Court held that Maryland armed robbery qualifies as a “violent

felony” under the ACCA’s elements clause and a “crime of violence” under Section 4B1.2’s

identical elements clause. See

, at *3-7. The D.C. Circuit—and every circuit

court to consider the question—has held the same. See Anderson,

, at *4

(collecting cases). The Court finds that this issue therefore is not “debatable among jurists of

reason” such that a certificate of appealability is warranted. Mitchell,

.

The Court further held that federal armed bank robbery under Sections 2113(a)

and (d) qualifies as a “crime of violence” under Section 924(c)(3)’s elements clause because

Section 2113(d) categorically requires “the use, attempted use, or threatened use of physical

force.” See Anderson,

, at *7-10; see also

(c)(3)(A). While

the Court stands by its analysis of Section 2113(d), it recognizes that the court of appeals might

disagree, or may resolve the issue in a different manner. See Mitchell,

.

6 In Burwell, the D.C. Circuit held that Section 2113(a)—which criminalizes bank

robbery “by force and violence, or by intimidation,” or “by extortion,”—does not qualify as a

“crime of violence” under Section 924(c)(3)’s elements clause because the first paragraph of the

statute is “indivisible as to extortion,” and “extortion need not involve the use or threat of force.”

Burwell, 122 F.4th at 986 (emphasis added). But every other circuit court to consider the

question—both before and after Burwell was decided—has reached the opposite conclusion:

that the first paragraph of Section 2113(a) is divisible into the separate offenses of bank robbery

and bank extortion, and bank robbery under Section 2113(a) qualifies as a “crime of violence”

under Section 924(c)(3)’s elements clause. See United States v. Watson,

(9th Cir. 2018); United States v. Evans,

(2d Cir. 2019); King v. United

States,

(1st Cir. 2020); United States v. Armstrong,

, 1286

(11th Cir. 2024); United States v. Vines,

(3d Cir. 2025).

Given the D.C. Circuit’s recent departure from its sister circuits on the issue of

whether bank robbery under Section 2113(a) is a “crime of violence,” and the circuit’s express

reservation of the question of whether armed bank robbery under Section 2113(d) is a “crime of

violence,” see Burwell, 122 F.4th at 989 n.1, the Court finds that this question is “adequate to

deserve encouragement to proceed further.” Mitchell,

. If the court of appeals

finds that armed bank robbery under Sections 2113(a) and (d) does not qualify as a “crime of

violence” under Section 924(c)(3)’s elements clause, then Mr. Anderson’s Section 924(c)

conviction would not be predicated on a qualifying “crime of violence” and he would be entitled

to relief on his Section 924(c) claim. Under these circumstances, the Court finds that a

certificate of appealability is warranted. See

(c)(2). Accordingly, it is hereby

7