United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters Judge United States District Court
case comes before the Court on Defendant Canfield's
motion to vacate, set aside, or correct the sentence under 28
U.S.C. § 2255. Canfield is a federal prisoner proceeding
was charged in May 2003 with committing nine casino robberies
in Billings, Montana, between March and July 2002. Another
person, co-defendant Marion Hungerford, "cased" the
casinos and reported to Canfield where the money and the
workers were. Canfield then went in to each casino with a
gun, pointed it at employees, and demanded money.
robbery was charged under the Hobbs Act, 18 U.S.C. §
1951(a). Canfield was charged with nine separate counts under
18 U.S.C. § 924(c)(1)(A) as to each robbery. Hungerford,
too, was named in each § 924(c) count as an aider and
abettor. Canfield was also charged with two counts of
possessing a firearm while subject to an order of protection,
violations of 18 U.S.C. § 922(g)(8)(B). See
Superseding Indictment (Doc. 49).
sentence under § 924(c) must run consecutive to any
other sentence; further, the first sentence under §
924(c) carries a mandatory five-year penalty, but every
§ 924(c) conviction thereafter carries another mandatory
and consecutive 25 years. Therefore, under the superseding
indictment, if convicted on all the § 924(c) counts,
each defendant faced a mandatory minimum sentence of 2, 460
months, or 205 years, consecutive to any guideline sentence
for the robberies. See 18 U.S.C. §
March 5, 2004, Canfield pled guilty to two counts of using or
carrying a firearm during and in relation to a crime of
violence in violation of 18 U.S.C. § 924(c)(1)(A),
Counts 9 and 19 of the Superseding Indictment. The
"crime of violence" underlying Count 9 was the
robbery at the Jackpot Casino on May 6, 2002 (Count 8). The
"crime of violence" underlying Count 19 was the
robbery at the Joker's Wild Casino on July 27, 2002
(Count 18). See Superseding Indictment (Doc. 49) at
4, 7-8; Plea Agreement (Doc. 81) at 2-3 ¶ 6.
December 16, 2004, Canfield was sentenced to serve seven
years in prison on Count 9 and a consecutive 25-year term on
Count 19, for a total term of 32 years, or 384 months, in
prison. Minutes (Doc. 137); Judgment (Doc. 138) at 2- 3; 18
U.S.C. § 924(c)(1)(A)(ii). Canfield did not appeal. His
sentence was later reduced to 240 months. See Order
now seeks relief under the United States Supreme Court's
recent decision in Johnson v. United States, __ U.S.
__, 135 S.Ct. 2551 (2015).
would agree that Canfield used a firearm as a weapon in
committing a crime. But that does not necessarily mean he is
guilty of using or carrying a firearm during and in relation
to a "crime of violence" within the meaning of 18
U.S.C. § 924(c).
"Crime of Violence"
penalizes those who use a firearm to commit federal drug
trafficking crimes and federal crimes of violence. Pursuant
to 18 USC §924(c)(1)(A), a person who does the following
will be penalized:
any person who, during and in relation to any crime of
violence or drug trafficking crime ... for which the person
may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm[.]
trafficking is not at issue here. The question is whether
Canfield used or carried a firearm in connection with a
"crime of violence." Congress defines the term as
For purposes of this subsection [§ 924(c)] the term
"crime of violence" means an offense that is a
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) 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.
18 U.S.C. § 924(c)(3).
person who trades a firearm for advice on how to commit tax
fraud arguably uses the firearm during and in relation to tax
fraud, or at least possesses the firearm in furtherance of
tax fraud. Cf Watson v. United States, 552 U.S. 74,
76 (2007); Smith v. United States, 508 U.S. 223, 241
(1993). But § 924(c) could not apply to that person,
because tax fraud is not a "crime of violence"-that
is, it does not have force as an element, and it does not
"by its nature" involve a substantial risk that
force will be used.
person who uses a firearm to extort advice on how to commit
tax fraud is at least threatening to use violence, and might
even use violence, during and in relation to the crime of tax
fraud. It would be reasonable to authorize punishment for
using a firearm in that manner. Congress once did so.
See Omnibus Crime Control Act of 1970, Pub. L. No.
91-644, tit. II, § 13, 84 Stat. 1889, 1890 (Jan. 2,
1971) (authorizing additional one- to ten-year penalty for
using a firearm to commit or unlawfully carrying a firearm
during commission of "any felony" prosecutable in
court of the United States); Comprehensive Crime Control Act
of 1984, Pub. L. No. 98-473, § 1005(a), 98 Stat. 1837,
2138-39 (Oct. 12, 1984) (replacing former § 924(c) with
provision imposing five-year sentence for using or carrying a
firearm during and in relation to a crime of violence);
see also Firearms Owners Protection Act, Pub. L. No.
99-308, § 104(a)(2)(F), 100 Stat. 449 (May 19, 1986)
(enacting definition of "crime of violence"
currently found in § 924(c)(3)).
Congress does not do so now. Since 1984, Congress has limited
the instances in which a person can be punished for using or
carrying a firearm in criminal activity. Section 924(c) could
not apply to a person who uses a firearm to extort tax fraud
advice, because tax fraud does not meet Congress's
definition of a crime of violence.
characteristic of Congress's definition of a "crime
of violence" is that it applies to categories of crimes,
not to the circumstances in which an individual defendant
uses or carries or possesses a firearm. Necessarily so, using
a firearm as a weapon to commit a crime would make
any crime a violent one. But if that was what
Congress intended, the phrase "crime of violence"
would be superfluous.
uses the identical phrase, "crime of violence,"
elsewhere in Title 18, see § 16. It uses a
similar phrase, "violent felony," elsewhere in
§ 924, at subsection 924(e)(2)(B). As to both §
924(e)(2)(B) and § 16, courts use a "categorical
approach" to decide whether a given crime fits
Congress' definition. This approach looks "only to
the statutory definitions" of the crime, "not to
the particular facts underlying" an individual
defendant's commission of the crime. Taylor v. United
States, 495 U.S. 575, 600 (1990); see also United
States v. Sherbondy, 865 F.2d 996, 1009-10 (9th Cir.
1988) (holding that district court may look only "to the
statutes establishing the crimes," not "the
individual defendant's specific conduct in committing the
... offense."), cited in Taylor, 495 U.S. at
Ninth Circuit has long required courts use the categorical
approach to interpret § 924(c)(3) just as they interpret
§ 924(e)(2)(B) and § 16. See United States v.
Benally, 843 F.3d 350, 352 (9th Cir. 2016); United
States v. Amparo, 68 F.3d 1222, 1224-26 (9th Cir. 1995).
Section 924(c) only penalizes those who use a firearm to
commit some crimes. For the penalty to apply, the
predicate crime to a § 924(c) conviction must
always be a "crime of violence,"
regardless of how a particular defendant might commit the
crime, and regardless of whether a firearm is used or carried
or possessed in furtherance of it. "A crime cannot
categorically be a 'crime of violence' if the statute
of conviction punishes any conduct not encompassed by the
statutory definition of a 'crime of violence.'"
Benally, 843 F.3d at 352.
next question is whether Canfield's violation of the
Hobbs Act was a "crime of violence," either because
it "has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another," or because, "by its nature,
[it] involves a substantial risk that physical force against
the person or property of another may be used in the course
of committing the offense." 18 U.S.C. § 924(c)(3).
To answer this question, the Court must use the categorical
Robbery or Extortion?
case differs from that of many others litigated in this
District under Johnson. He argues that Hobbs Act
robbery is not a crime of violence under § 924(c)(3)(A).
He also points to Hobbs Act extortion cases to show that some
offenses prosecuted under the Act are non-violent. The United
States' amended answer invites the Court to review the
indictment and plea agreement to establish that Canfield was
convicted of Hobbs Act robbery. See Am. Answer (Doc.
291) at 25-26; see generally Shepard v. United
States, 544 U.S. 13 (2005).
Indictment alleged that Canfield committed
"robbery" and took property from each business
"against its will by means of actual and threatened
force, violence and fear of injury." See
Superseding Indictment (Doc. 49) at 7 (Count 8), 11 (Count
18). These are unambiguous allegations using the words of the