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United States v. Lapp

United States District Court, D. Montana, Helena Division

February 14, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
WILLIAM MICHAEL LAPP, JR., Defendant.

          ORDER

          CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendant- Movant William Lapp's “Motion To Vacate, Set Aside, or Correct a Sentence Under 28 U.S.C. § 2255.” (ECF No. 40.) The Ninth Circuit Court of Appeals granted leave to file this successive petition. (ECF No. 42.) Briefing on the issue has been completed, and the Court is prepared to rule.

         Background:

         Defendant Lapp specialized in closing-time robberies in small Montana casinos, apparently in order to take advantage of the lone female attendants working in those casinos at closing time. Just prior to two of the robberies, Lapp presented his driver's license to the attendant in order to purchase alcohol. Three of the attendants positively identified Lapp from a photo lineup. He showed all four attendants his .357 Ruger revolver. One attendant specifically asked Lapp not to kill her. Lapp told another attendant that he did not want to hurt her, but he would if he had to. At the conclusion of the first robbery, Lapp forced the lone attendant out into the alley behind the casino, and he followed her out, so the attendant was afraid Lapp was going to shoot her. At the conclusion of the other three robberies, Lapp forced the lone attendant into a bathroom and told each one to count to 100 before coming out. All four attendants were put in fear of their lives.

         Lapp robbed a Kalispell casino of $1, 700. He robbed a Great Falls casino of $5, 700. He robbed a Butte casino of $3, 000. He robbed a Helena casino of $6, 000. When his state probation officer searched his residence, the cash box from the Helena casino was found (along with cash and a check written to the casino inside), as well as receipts from the casinos for beer or liquor, and Lapp's .357 Ruger revolver, which loaded with six rounds of ammunition.

         Lapp pleaded guilty to all four armed robberies, 18 U.S.C. § 1951, and two of four counts of “Use of a Firearm During a Crime of Violence, ” 18 U.S.C. § 924(c)(1)(A)(ii) (the “brandishing counts”). Four counts were dismissed under the plea agreement: two additional counts of Use of a Firearm During a Crime of Violence, a Felon-in-Possession count, and a Possession of a Stolen Firearm count. A thirty-two year mandatory minimum applied to the two counts of “Use of a Firearm During a Crime of Violence” (to be served consecutively to the sentence for the four armed robberies). Had Lapp pleaded guilty to all four brandishing counts, he would have been subject to a 82 year mandatory minimum sentence (and that sentence would have been consecutive to his sentence for the four armed robberies).

         Recognizing Defendant's high guideline range and consecutive thirty-two year mandatory minimum sentence and feeling sympathy for some of the hardships faced by this Defendant in his life, this Court overlooked Defendant's three escape attempts prior to sentencing. However, the last escape plan was quite serious because Defendant attempted to recruit other individuals to commit additional robberies in Montana before fleeing the state. (PSR ¶¶ 6-11.) Despite Defendant's clear intention to repeat his offense conduct by committing more armed robberies, the Court nevertheless reduced Defendant's guideline range as to the four armed robbery counts, sentencing Defendant to a term of only eight years as to the four armed robbery counts. Taking into account the mandatory thirty-two year consecutive sentence, Defendant's aggregate sentence was 40 years of imprisonment.

         Defendant's 2255 Motion

         In this second § 2255 Motion, Defendant-Movant relies upon the new rule of constitutional law announced in Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual clause of the Armed Career Criminal Act (ACCA), violated the U.S. Constitution's guarantee of due process and is void for vagueness. In what is called the “residual clause, ” the ACCA defined a “violent felony” to include an offense that “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(b)(ii). Under section 924(e)(1), the presence of three or more violent or controlled substance felony convictions in a defendant's criminal history qualifies a defendant as an armed career criminal for the purpose of establishing a mandatory minimum sentence of fifteen years for section 922(g)[1] firearms convictions. Notably, section 922(g) firearms convictions have no element of violence or force, but are in the nature of a status crime. However, the function of the ACCA is to impose a mandatory minimum sentence of 15 years imprisonment for a status crime based upon the prior three convictions for crimes of violence (or controlled substance offenses).

         Defendant Lapp, however, was not sentenced under the ACCA. Defendant's argument that Johnson should be extended to apply to his brandishing convictions is without merit. While it is true that the section 924(c)(3) definition of a crime of violence is somewhat similar to the ACCA's definition of “crime of violence, ” it is not identical, and the Supreme Court has not held the section 924(c)(3) definition to be unconstitutional or applicable retroactively on collateral review. Notably, section 924(c) crimes such as the brandishing crime in Defendant Lapp's case, by definition pertain only to persons who commit “crime[s] of violence or drug trafficking crime[s] . . . [who] uses or carries a firearm...” during the crime of violence or drug trafficking crime. In other words, unlike the ACCA, Defendant Lapp's brandishing offense itself involved a crime of violence. His crime of violence was not a historical antecedent as in the ACCA, but the very offense conduct giving rise to charge, conviction, and sentencing that is again brought before this Court on collateral review.

         The “crime of violence” definition that is applicable to Defendant Lapp's brandishing offenses is subsection 924(c)(3):

For purposes of this subsection the term ‘crime of violence' means 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
(B) that by its nature, involves substantial risk that physical force against the person or property of another may be used in the ...

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