UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Patrick Chasse

v. Civil No. 15-cv-473-PB Opinion No.

United States of America

AMENDED MEMORANDUM AND ORDER

(c) punishes those who use a firearm during

and in relation to “any crime of violence.” As used in §

924(c), “crime of violence” means a felony offense that either

“has as an element the use, attempted use, or threatened use of

physical force against the person or property of another,” (the

“force clause”), or “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

“residual clause”).

(c)(3). In Johnson v.

United States,

(2015), the United States Supreme

Court held that the residual clause in

(e)(2)(B)’s definition of “violent felony,” which is similar

to the residual clause in § 924(c), is unconstitutionally vague.

The Court later made its holding in Johnson retroactive in Welch

v. United States,

(2016). Patrick Chasse, the petitioner here, pleaded guilty to

several offenses in 2011, including two counts of “us[ing],

carr[ying], and brandish[ing]” a firearm “during and in relation

to a crime of violence,” in violation of

(c).

The underlying “crime[s] of violence” for those § 924(c)

convictions were federal bank robbery and pharmacy robbery.1

Chasse has since filed a

motion to vacate his §

924(c) convictions, arguing that Johnson requires a conclusion

that § 924(c)’s residual clause is unconstitutionally vague, and

that federal bank robbery and pharmacy robbery are not crimes of

violence under § 924(c)’s force clause.

The government opposes Chasse’s motion. It argues that

Chasse procedurally defaulted on this claim by failing to raise

it previously, and that he cannot show the cause and actual

prejudice needed to excuse his default. In particular, the

government contends that Chasse cannot establish prejudice,

because federal bank robbery and pharmacy robbery are both

crimes of violence under § 924(c)’s force clause. Therefore,

according to the government, even assuming that Johnson renders

§ 924(c)’s residual clause unconstitutional, Chasse is not

1 In one of its briefs, the government incorrectly suggested that Chasse’s predicate “crime of violence” was Hobbs Act robbery,

. See Doc. No. 18 at 26-27. 2 entitled to § 2255 relief.2

I. BACKGROUND

During the fall of 2010, Patrick Chasse and two co-

conspirators committed a series of armed robberies. Following

those crimes, in June 2011, a grand jury returned a twenty-

eight-count superseding indictment against Chasse and his

associates. See Superseding Indictment, United States v.

Chasse, No. 11-cr-52-PB (D.N.H. June 8, 2011), Doc. No. 32. The

indictment included two

(c) charges against

Chasse, Counts Five and Twenty.3 See Presentence Investigation

Report at 1-2, United States v. Chasse, No. 11-cr-52-PB (D.N.H.

May 10, 2012), Doc. No. 84 (Sealed).

2 Chasse’s pro se § 2255 petition includes additional challenges to his convictions, including an ineffective assistance of counsel claim. See Doc. Nos. 8 at 5; 15. I will address those issues in a separate Memorandum and Order.

3 The superseding indictment included four § 924(c) charges against Chasse -- Counts Five, Nine, Sixteen, and Twenty. See Superseding Indictment, United States v. Chasse, No. 11-cr-52-PB (D.N.H. June 8, 2011), Doc. No. 32. Counts Nine and Sixteen were dismissed pursuant to Chasse’s plea agreement, however, and Chasse was convicted of only the § 924(c) charges set out in Counts Five and Twenty. See Judgment, United States v. Chasse, No. 11-cr-52-PB (D.N.H. May 25, 2012), Doc. No. 91. I address only those counts here.

3 The § 924(c) counts stemmed from two incidents. Count Five

resulted from a September 2010 robbery at a TD Bank branch in

Manchester, New Hampshire. Superseding Indictment at 5, United

States v. Chasse, No. 11-cr-52-PB (D.N.H. June 8, 2011), Doc.

No. 32. The underlying “crime of violence” for Count Five was

federal bank robbery,

(a) and (d) (Count Three).

Id. at 3. Count Twenty was based on a November 2010 robbery at

a Rite Aid Pharmacy in Manchester. Id. at 20. The underlying

“crime of violence” for Count Twenty was pharmacy robbery,

(a) and (c)(1) (Count Eighteen). Id. at 18.

In September 2011, Chasse pleaded guilty to a number of the

charges against him, including the two § 924(c) counts, and the

underlying federal bank robbery and pharmacy robbery charges.

He was later sentenced to a total term of imprisonment of 239

months and one day -- a 120 month sentence on Count Five, a 119

month sentence on Count Twenty, and a one day sentence on all

other counts. Judgment at 3, United States v. Chasse, No. 11-

cr-52-PB (D.N.H. May 25, 2012), Doc. No. 91. The sentences on

Counts Five and Twenty were ordered to be served consecutively

to each other and to the other counts, pursuant to §

924(c)(1)(A).

4 II. ANALYSIS

Chasse seeks to vacate his § 924(c) convictions, claiming

that § 924(c)’s residual clause is unconstitutionally vague in

light of Johnson v. United States,

(2015), and

that federal bank robbery and pharmacy robbery do not qualify as

“crimes of violence” under § 924(c)’s force clause. The

government responds that Chasse procedurally defaulted on this

claim by failing to raise it previously, and that he cannot

demonstrate the cause and prejudice required to excuse that

default. To put these arguments into context, I begin by

describing Johnson and § 924(c), then outline the procedural

default rule, and finally turn to the government’s assertion

that federal bank robbery and pharmacy robbery constitute

“crimes of violence” under § 924(c)’s force clause.

A. Johnson and § 924(c)

In Johnson, the Supreme Court addressed the definition of

“violent felony” under the Armed Career Criminal Act (“ACCA”),

(e)(2). Federal law prohibits a felon from

possessing a firearm.

(g); Welch,

. Pursuant to the ACCA, a felon who possesses a firearm

after three or more convictions for a “violent felony” faces an

enhanced sentence.

(e)(1).

5 The ACCA defines “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . that — “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

§ 924(e)(2)(B). Subsection (i) of § 924(e)(2)(B) is known as

the “elements clause.” Welch,

. The end of

subsection (ii) -- “or otherwise involves conduct that presents

a serious potential risk of physical injury to another” -- is

the “residual clause.”

The Supreme Court in Johnson held

that the ACCA’s residual clause is unconstitutionally vague.

Id.; Johnson,

.

(c), meanwhile, punishes those who use a

firearm during and in relation to “any crime of violence.” The

statute generally calls for a five-year mandatory minimum

sentence, but requires a ten-year mandatory minimum where, as in

Chasse’s case, the firearm is a “short-barreled shotgun.” See

(c)(1)(A)(i), (c)(1)(B)(i). The sentence on a §

924(c) conviction runs consecutively to the sentence for the

underlying “crime of violence.” Id. § 924(c)(1)(A).

Section 924(c)(3) sets out a two-part definition of “crime

of violence.” Under the statute’s “force clause,” an offense is

a crime of violence if it is a felony that “has as an element 6 the use, attempted use, or threatened use of physical force

against the person or property of another.” Id. § 924(c)(3)(A).

Under § 924(c)’s “residual clause,” an offense is a crime of

violence if it is a felony “that 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.” Id. § 924(c)(3)(B).

Thus, the residual clause in § 924(c)’s definition of

“crime of violence” is similar to the residual clause in the

ACCA’s definition of “violent felony.” Compare id. §

924(c)(3)(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”), with id. §

924(e)(2)(B)(ii) (“or otherwise involves conduct that presents a

serious potential risk of physical injury to another”). Citing

these similarities, Chasse contends that § 924(c)’s residual

clause is unconstitutional in light of Johnson.4 He also asserts

4 Courts have disagreed about whether Johnson affects § 924(c)’s residual clause. Compare United States v. Taylor,

(6th Cir. 2016) (rejecting claim that Johnson invalidated § 924(c)’s residual clause); United States v. Tsarnaev,

(D. Mass. 2016) (same), with United States v. Smith, No. 11-cr-58-JAD-CWH,

(D. Nev. May 18, 2016) (concluding that § 924(c)’s residual clause is unconstitutional in light of Johnson); United States v. Edmundson,

(D. Md. 2015) (same). For the reasons provided below, I need not decide the issue. 7 that federal bank robbery and pharmacy robbery do not qualify as

crimes of violence under § 924(c)’s force clause. Thus, he

argues that his § 924(c) convictions must be vacated.

B. Procedural Default

The government counters that Chasse procedurally defaulted

on his claim that § 924(c)’s residual clause is

unconstitutional, because he failed to raise this argument

either before his conviction or on direct review.5 The

procedural default rule imposes a “significant bar on habeas

corpus relief” in cases where “a prisoner did not raise claims

at trial or on direct review.” Owens v. United States,

(1st Cir. 2007). “In such cases, a court may hear those

claims for the first time on habeas corpus review only if the

petitioner has ‘cause’ for having procedurally defaulted his

claims, and if the petitioner suffered ‘actual prejudice’ from

the errors of which he complains.”6

The petitioner must

demonstrate both cause and prejudice, Prou v. United States, 199

5 The government agrees that

(f)’s statute of limitations does not bar Chasse’s petition. See Doc. No. 18 at 3 n.1.

6 A court can also excuse a petitioner’s procedural default where the petitioner makes a showing of actual innocence. Owens,

n.6. Chasse does not claim here that he is actually innocent.

, 47 (1st Cir. 1999); the absence of either requirement

means that he cannot obtain relief. Cf. Jordan v. United

States,

, 3 n.1 (1st Cir. 2015) (declining to

address prejudice where petitioner failed to establish cause for

his default).

The government argues that Chasse has shown neither cause

nor prejudice. It claims, among other things, that Chasse

cannot establish prejudice, because the offenses underlying his

§ 924(c) convictions, federal bank robbery and pharmacy robbery,

both qualify as crimes of violence under § 924(c)’s force

clause. Therefore, the government asserts, even if Johnson

renders § 924(c)’s residual clause unconstitutional, Chasse’s §

2255 motion should be denied. As explain below, the

government’s argument is persuasive.

C. The Categorical Approach

To determine whether federal bank robbery and pharmacy

robbery constitute crimes of violence under § 924(c)’s force

clause, I apply the so-called “categorical approach.”7 The

7 The government suggests that the categorical approach may not apply to § 924(c), or at least to § 924(c)’s residual clause. See Doc. No. 18 at 19 (“Neither the Supreme Court nor the First Circuit has ever held that the categorical approach, adopted in the ACCA setting, should apply to the § 924(c) residual clause.”). Some courts have apparently reached this same conclusion, at least when considering a defendant’s pretrial motion to dismiss an indictment. See, e.g., United States v. 9 categorical approach generally requires courts to look “only to

the statutory definitions - i.e., the elements - of a

defendant’s [offense] and not to the particular facts underlying

[the offense]” in deciding whether that offense qualifies as a

crime of violence. Descamps v. United States,

(2013) (emphasis in original). Thus, I may consider only

“the statutory definition of the [offense] and the fact of

conviction to determine whether the conduct criminalized by the

statute, including the most innocent conduct, qualifies as a”

crime of violence. United States v. Fish,

(1st

Cir. 2014) (citing Karimi v. Holder,

(4th Cir.

2013)). If the “most innocent conduct” proscribed by a statute

does not constitute a crime of violence, then the statute

categorically fails to qualify as a crime of violence. See

C. Federal Bank Robbery

Applying that categorical framework, Chasse contends that

McCallister, No. CR 15-0171 (ABJ),

, at *7 (D.D.C. May 31, 2016); United States v. McDaniels,

(E.D. Va. 2015). Other courts disagree, particularly in the post-conviction context. See, e.g., United States v. Hill, No. 14-3872-CR,

(2d Cir. Aug. 3, 2016) (applying categorical approach to determine whether Hobbs Act robbery is a crime of violence under § 924(c)); United States v. Fuertes,

(4th Cir. 2015). Here, Chasse premises his challenge to his § 924(c) convictions on the theory that the categorical approach applies to § 924(c). See Doc. No. 20 at 15-16. I assume, for the purposes of this Memorandum and Order, that he is correct. 10 armed bank robbery,

(a) and (d), is not a

violent felony under § 924(c)’s force clause, because it does

not have “as an element the use, attempted use, or threatened

use of physical force against the person or property of

another.” The relevant portion of § 2113 includes four

requirements:

(1) the defendant took, or attempted to take, money belonging to, or in the custody, care, or possession of, a bank, credit union, or saving and loan association; (2) the money was taken by force and violence, or by intimidation; (3) the deposits of the institution were federally insured, and (4) in committing or attempting to commit the offense, the defendant assaulted any person, or put in jeopardy the life of any person, by the use of a dangerous weapon or device. The first three elements . . . are drawn from § 2113(a) and define the lesser-included offense of bank robbery. The fourth element is drawn from § 2113(d).

United States v. McNeal,

(4th Cir. 2016)

(internal punctuation omitted).8 The arguments here focus on the

second requirement -- that the money must be taken “by force and

violence, or by intimidation,”

(a).

8 Section 2113(a) also prohibits “enter[ing],” or attempting to enter, a bank with the intent to commit a felony affecting the bank. Section 2113(a)’s “entering” provision apparently does not require the use, attempted use, or threatened use of physical force. See United States v. McBride, No. 15-3759,

(6th Cir. June 10, 2016) (noting that § 2113(a)’s “entering” provision “could certainly encompass many nonviolent felonies”). However, the “entering” portion of § 2113(a) sets forth a distinct set of elements, and is divisible under Descamps. And, the charging documents in this case make plain that Chasse pleaded guilty to the “taking” portion of § 2113(a). 11 Since Johnson, courts have consistently held that both

unarmed and armed bank robbery, § 2113(a) and (d), qualify as

crimes of violence under § 924(c)’s force clause, and under

similar provisions of federal law. The reasoning these courts

employ is straightforward. For example, in concluding that

armed bank robbery constitutes a crime of violence under §

924(c)’s force clause, the Fourth Circuit in McNeal explained

that “[a] taking ‘by force and violence’ entails the use of

physical force.”

; see United States v. McBride,

No. 15-3759,

(6th Cir. June 10, 2016)

(“Bank robbery by ‘force and violence’ plainly involves ‘the

use, attempted use, or threatened use of physical force.’”).

Meanwhile, “a taking ‘by intimidation’ involves the threat to

use [physical] force.” McNeal,

; see United

States v. Burns,

(1st Cir. 1998) (explaining

that “intimidation” occurs where “a reasonable person in the

same circumstances would have felt coerced by a threat of bodily

harm”) (emphasis in original). Therefore, both robbery by

“force and violence” and by “intimidation” include “an element

that is ‘the use, attempted use, or threatened use of physical

force,’ and thus bank robbery under § 2113(a) constitutes a

crime of violence under the force clause of § 924(c)(3).”

McNeal,

; see also McBride,

, at 12 *2 (applying similar reasoning, and concluding that § 2113(a)

constitutes a crime of violence under U.S.S.G. § 4B1.2(a)’s

force clause); United States v. Jenkins, No. 15-14809,

, at *4 (11th Cir. June 3, 2016) (same).

Moreover, in Kucinski v. United States,

, I

recently determined that federal bank robbery qualifies as a

“violent felony” under the ACCA’s elements clause. In that

case, the petitioner argued that federal bank robbery was not a

violent felony because: (1) “intimidation” under § 2113(a) does

not require a threat to use physical force, (2) § 2113(a) does

not demand a threat of violent force,9 and (3) § 2113(a) does not

require a sufficient mens rea to qualify as a violent felony.

See Kucinski,

. I addressed each of these points

at length, and ultimately concluded that none were persuasive.

9 Under the ACCA, “physical force” means “violent force” -- “that is, force capable of causing physical pain or injury to another person.” Whyte v. Lynch,

(1st Cir. 2015) (emphasis in original). A statute that proscribes de minimis touching therefore does not qualify as a “violent felony” under the ACCA. See United States v. Fields,

(1st Cir. 2016). In United States v. Castleman, however, the Supreme Court interpreted the phrase “physical force” in a different statute,

(a)(33)(A)(ii), to require only an “offensive touching.” See

(2014). Some courts have construed “physical force” in § 924(c) to require violent force, rather than merely offensive contact. See United States v. Williams, No. 2:15-CR-69-JDL,

(D. Me. Apr. 15, 2016). I assume, for the sake of analysis, that this interpretation is correct.

13 See id. at 7-19.

I reach the same conclusion here. Chasse does not cite any

differences between § 924(c) and the ACCA that would lead to a

different result in the § 924(c) context. See Doc. No. 21 at 3.

Nor does he present any persuasive argument that the petitioner

in Kucinski neglected. See id. Accordingly, for essentially

the same reasons outlined in Kucinski, I conclude that federal

bank robbery “has as an element the use, attempted use, or

threatened use of physical force,” and thus qualifies as a crime

of violence within the meaning of § 924(c)’s force clause.

D. Pharmacy Robbery

Chasse also suggests that pharmacy robbery,

(a) and (c)(1), is not a crime of violence under § 924(c)’s

force clause. The relevant portion of § 2118 proscribes

“tak[ing] or attempt[ing] to take from the person or presence of

another by force or violence or by intimidation any material or

compound containing any quantity of a controlled substance

belonging to or in the care, custody, control, or possession of

a person registered with the Drug Enforcement Administration . .

. .”

(a). If the defendant “assaults any

person, or puts in jeopardy the life of any person, by the use

of a dangerous weapon or device” in committing pharmacy robbery,

the defendant is subject to an enhanced sentenced.

§ 14 2118(c)(1).

According to the government, “there is no material

difference between” the federal bank robbery statute and the

pharmacy robbery statute for § 924(c) purposes. Doc. No. 18 at

29 n.8. As the government seems to recognize, there are some

textual differences between the two provisions -- § 2113(a)

requires a taking “by force and violence, or by intimidation,”

whereas § 2118(a) demands a taking “by force or violence or by

intimidation.” (emphasis added). Chasse, however, has not

argued that the two statutes should be treated differently based

upon that distinction, or otherwise explained why pharmacy

robbery is not a crime of violence under § 924(c). See Doc. No.

21 at 3. Moreover, I am unaware of any opinion in which another

court concluded that one can commit pharmacy robbery by using,

or threatening to use, nonviolent force. Cf. United States v.

Fish,

(1st Cir. 2014) (“[I]n assessing whether the

elements of the candidate proposed as a predicate crime are

overbroad, we need not consider fanciful, hypothetical

scenarios.”). Therefore, I conclude that the two statutes are

interchangeable for § 924(c) purposes, and determine that

pharmacy robbery qualifies as a crime of violence under §

924(c).

In sum, the offenses underlying Chasse’s two § 924(c) 15 convictions, federal bank robbery and pharmacy robbery, both

qualify as crimes of violence under § 924(c)’s force clause.

For that reason, even assuming that Johnson renders § 924(c)’s

residual clause unconstitutional, Chasse cannot establish the

prejudice needed to excuse his procedural default. Chasse’s §

2255 motion therefore must be denied.

III. CONCLUSION

To the extent that Chasse claims in his

motions (Doc. Nos. 1, 8) that his § 924(c) convictions should be

vacated in light of Johnson, his motions are denied. I will

address the other issues raised in Chasse’s § 2255 petitions in

a separate Memorandum and Order.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

September 15, 2016

cc: Cathy J. Green, Esq. Seth R. Aframe, Esq.

16