ATLANTA (CN) — The 11th Circuit heard arguments Tuesday in an appeal seeking to vacate a sentence for conspiracy to rob a bank by force and using a firearm during a crime of violence.
In August 2012, Deandre King and two others entered a PNC bank in Dunwoody, Georgia, where they brandished their guns at the tellers to force them into the vault and hand over $71,000.
The following month, the same men canvassed another bank in Austell, another Atlanta suburb, forming a plan to carry out another robbery. Before they were able to execute their plans, law enforcement noticed their car that officers were on the lookout for and stopped them.
The men were arrested and King was indicted by a federal grand jury in the Northern District of Georgia on three counts of a seven-count indictment.
Under a plea deal, King's charges were eventually dropped to two counts - conspiracy to commit armed back robbery in violation of 18 U.S.C. § 371, and using and carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). He was sentenced to a prison term of 135 months, or just over 11 years.
In 2020, King appealed the second count of his conviction based on the 2019 U.S. Supreme Court decision in United States v. Davis.
In that case, the justices vacated the 18 U.S.C. § 924(c) count against a man found guilty of a similar crime, finding that the residual clause of the statute – which defines an offense as a crime of violence if it, “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" – was unconstitutionally vague.
King's request was denied by Senior U.S. District Judge Orinda Evans, a Jimmy Carter appointee who agreed with the government that his appeal was barred by his plea agreement and the Supreme Court's 1998 decision in Bousley v. United States. King then appealed to the Atlanta-based 11th Circuit.
"In a case like this — where a defendant pleaded guilty in exchange for the government’s forgoing more serious charges – King’s showing of actual innocence must also extend to the foregone charges as well. King’s plea colloquy established without doubt that he was guilty of armed bank robbery, and thus he cannot meet his burden of showing actual innocence," Assistant U.S. Attorney Gabriel Mendel wrote in his brief to the appeals court.
King's attorney Matthew Dodge noted in his brief that the conspiracy charge his client pleaded guilty to, and is not challenging, has a statutory maximum of just five years in prison.
"Mr. King’s § 924(c) conviction is unlawful after Davis and he is now serving an additional seven years in prison for a phantom crime," the brief states.
U.S. Circuit Judge Robert Luck, a Donald Trump appointee, said during Tuesday's hearing there are two variants to King's sentencing – the U.S. sentencing guideline range of 51-60 months or the statutory maximum of 61-63 months, both of which are lower than the sentence King could have received if he didn't plead guilty.
Fellow Trump appointee U.S. Circuit Judge Britt Grant told Dodge that King's claim faces two hurdles - the collateral waiver of appeal in his plea agreement and procedural default.
Dodge responded that his client's claim should survive due to a "critical mistake of fact" in the government's reliance on Bousley. He said the dismissed charges are not more serious than the convicted charges simply because they carry higher statutory maximum sentences, so King should not have to show innocence of the foregone charges.
Luck questioned Dodge on why he is using this argument when the five-year maximum sentence on the conspiracy charge is still a "huge benefit" compared to the 20 and 25-year maximum sentences that come with the dismissed charges.
When asked by Luck if, under Davis, King is actually innocent of the second count from the government's view, Mendel responded in the affirmative but added that King still has to show innocence of all dropped charges to prevail in his appeal.
Senior U.S. Circuit Judge Lanier Anderson, a Carter appointee, rounded out the 11th Circuit panel. The judges did not say when they intend to release a decision.
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