UNITED STATES v. BOLDEN (2024)

ORDER

Petitioner Terrance Bolden, who is represented by counsel, moves to correct his sentence under 28 U.S.C. § 2255. The Government opposes. I will grant Bolden's Motion in part, vacate his conviction on Count 4, vacate his sentence on all Counts, and conduct a new sentencing hearing.

I. BACKGROUND

On March 18, 2015, Bolden pled guilty before me to one count of bank robbery (Count 1), one count of attempted bank robbery (Count 2), two counts of attempted armed bank robbery (Counts 3 and 5), one count of using and carrying a firearm during a crime of violence (Count 4), and one count of being a convicted felon in possession of a firearm (Count 7). (Doc. No. 100); 18 U.S.C. §§ 2113(a), (d); id. §§ 924(c)(1), (e); id. § 922(g)(1). He entered his plea pursuant to a Rule 11(c)(1)(C) Plea Agreement, by which the Parties stipulated to a sentence of 20 years’ imprisonment, 5 years’ supervision, restitution and a fine within my discretion, and a $600 special assessment. (Doc. No. 101.) At the December 22, 2015 sentencing, the Parties explained that the stipulated sentence was determined by “the mandatory minimum of 15 years for the [A]rmed [C]areer [C]riminal [A]ct and the 5 years for the 924(c) charge.” (Doc. No. 127 at 7.) I sentenced Bolden to 20 years’ imprisonment—concurrent 15-year terms on each of Counts 1, 2, 3, 5, and 7 followed by a consecutive 5-year term on Count 4 (the § 924(c) conviction)—five years’ supervision, and $6,601 in restitution. (Doc. No. 116.) Bolden did not appeal.

On May 16, 2016, Bolden filed a pro se Motion to Vacate, Set Aside, or Correct Sentence, arguing that he is entitled to relief under Johnson v. United States, 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). (Doc. No. 119); 18 U.S.C. § 2255; see also Welch v. United States, 578 U.S. 120, 136 S. Ct. 1257, 1265, 194 L.Ed.2d 387 (2016) (holding that Johnson announced a new substantive constitutional right retroactive to cases on collateral review). On June 10, 2019, the Government responded in opposition to Bolden's Motion. (Doc. No. 123.) Bolden then filed a pro se supplemental reply brief, in which he argued that he is also entitled to relief under Rehaif v. United States, 588 U.S. 225, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). (Doc. No. 126.)

On April 6, 2024, Bolden, through counsel, moved for leave to proceed in forma pauperis and to appoint counsel. (Doc. No. 130). I granted Bolden's Motion and appointed the Federal Community Defender Office to represent him. (Doc. No. 131.) On July 3, 2024, Bolden filed a counseled memorandum, in which he adopts and elaborates on his constitutional challenge to the § 924(c) conviction and ACCA enhancement. (Doc. No. 134.) On July 16, 2024, the Government filed a supplemental response opposing Bolden's claims. (Doc. No. 136.) On July 23, 2024, Bolden filed a reply to the Government's supplemental response. (Doc. No. 137.)

II. LEGAL STANDARDS

Section 2255 provides relief where: (1) “the sentence was imposed in violation of the Constitution or laws of the United States ․ was in excess of the maximum authorized by law, or is otherwise subject to collateral attack;” or (2) “the court was without jurisdiction to impose such sentence.” 28 U.S.C. § 2255(a). Where “the record affirmatively indicates that the claim for relief is without merit,” I may deny relief without holding an evidentiary hearing. Page v. United States, 462 F.2d 932, 933 (3d Cir. 1972).

III. DISCUSSION

Bolden argues that: (1) his § 924(c) conviction is unconstitutional under United States v. Davis, 588 U.S. 445, 139 S. Ct. 2319, 204 L.Ed.2d 757 (2019) and United States v. Taylor, 596 U.S. 845, 860, 142 S.Ct. 2015, 213 L.Ed.2d 349 (2022); (2) his Pennsylvania robbery convictions were improperly used as predicates to enhance his sentence under the ACCA; and (3) his § 924(e) conviction is unconstitutional under Rehaif v. United States, 588 U.S. 225, 139 S.Ct. 2191, 204 L.Ed.2d 594 (2019). (Doc. Nos. 119, 126, 134; see also Doc. No. 129 (Government response addressing both § 924(c) and § 924(e) convictions).) Bolden asks me to reduce his sentence by 60 months or to conduct a plenary resentencing. The Government opposes Bolden's Motion, arguing that attempted armed bank robbery qualifies as a § 924(c) predicate and that I need not reach the ACCA issue because it has no material impact on Bolden's sentence.

A. Section 924(c) Challenge

Bolden challenges his § 924(c) conviction, arguing that attempted armed bank robbery does not constitute a predicate crime of violence.

i. Legal Background

Section 924(c) applies to a person who uses or carries a firearm during and in relation to a “crime of violence” or a “drug trafficking offense.” 18 U.S.C. § 924(c). A crime of violence is a felony that “has an element the use, attempted use, or threatened use of physical force against the person or property of another,” or “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)(5). In Davis, the Supreme Court invalidated the latter provision, known as the “residual clause.” 139 S. Ct. at 2323-24. Accordingly, a § 924(c) predicate offense constitutes a crime of violence only if it satisfies the first clause—the “elements clause.”

In Taylor, the Supreme Court held that attempted Hobbs Act robbery does not constitute a crime of violence. 596 U.S. at 860, 142 S.Ct. 2015. To make out Hobbs Act robbery, the Government must prove beyond a reasonable doubt that an individual engaged in “the unlawful taking or obtaining of personal property from the person ․ of another, against his will, by means of actual or threatened force.” 18 U.S.C. § 1951(b). Accordingly, to prove attempted Hobbs Act robbery, the Government must prove that: “(1) the defendant intended to unlawfully take or obtain personal property by means of actual or threatened force, and (2) he completed a ‘substantial step’ toward that end.” Taylor, 596 U.S. at 851, 142 S.Ct. 2015.

Bolden's conviction was predicated on attempted armed bank robbery, not attempted Hobbs Act robbery, however. See 18 U.S.C. § 2113(d). Section 2113(d) applies to “[w]hoever, in committing, or in attempting to commit bank robbery [under § 2113(a)], assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device.” Section 2113(a) applies to “[w]hoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, ․ any property or any other thing of value ․” Id. § 2113(a).

The Third Circuit has held that both bank robbery and armed bank robbery are “crimes of violence” under § 924(c). United States v. Johnson, 899 F.3d 191, 203 (3d Cir. 2018); United States v. Wilson, 880 F.3d 80, 83 (3d Cir. 2018). Although it has not so squarely addressed attempt, in United States v. Garner, the Third Circuit adopted the elements of common law attempt, stating that “[t]o prevail on a charge of attempted bank robbery, the Government had to prove that (1) Garner had the requisite intent to commit armed bank robbery; and (2) he ‘performed an act amounting to a ‘substantial step’ toward the commission of that crime.’ ” 915 F.3d 167, 170 (3d Cir. 2019) (quoting United States v. Hsu, 155 F.3d 189, 202 (3d Cir. 1998)). Likewise, in a non-precedential opinion in United States v. Sawyer, the Third Circuit stated that an attempted armed bank robbery conviction requires that the defendant act “with intent to commit armed bank robbery” and take “a substantial step toward carrying out that intent.” 39 F. App'x 785, 787 (3d Cir. 2002).

In line with Sawyer, the Third Circuit's Model Jury Instruction 6.18.2113D (Bank Robbery – Armed – Elements of the Offense (18 U.S.C. § 2113(d))) states that “[i]f the charge is attempted armed bank robbery, the court should also give Instruction 7.01 (Attempt).” Instruction 7.01 requires the Government prove beyond a reasonable doubt:

First: That (name) intended to commit the crime of (state offense) ․ and Second: That (name) performed an act(s) constituting a substantial step(s) toward the commission of (state offense) which strongly corroborates or confirms that (name) intended to commit that crime.

Relying on these authorities, Courts in this District have twice held that attempted armed bank robbery is not a crime of violence. See United States v. Humbert, No. 04-192-02, ––– F.Supp.3d ––––, ––––, 2024 WL 2883657, at *1 (E.D. Pa. June 7, 2024); United States v. Gordon, No. 99-348-2, 2024 WL 1585919 (E.D. Pa. Apr. 11, 2024).

ii. Attempted Armed Bank Robbery Involves the Use, Attempted Use, or Threatened Use of Force

Bolden argues that attempted armed bank robbery no longer qualifies as a crime of violence under Taylor. Yet, attempted Hobbs Act robbery is plainly distinct from attempted armed bank robbery. An individual commits Hobbs Act robbery by committing a “robbery or extortion” or “attempt[ing] or conspir[ing] to do so.” 18 U.S.C. § 1951(a). Rather than explicitly include an element of force within that subsection, however, Congress separately defined robbery and extortion in the subsequent subsection, mentioning the use and threatened use of force only. See id. § 1951(b). By contrast, Congress included such terms within § 2113(d), defining attempt and completed armed bank robbery as forms of a single offense. Accordingly,

A conviction under § 2113(d) ․ requires the government to prove that the defendant assaulted or put in jeopardy the life of another by the use of a dangerous weapon or device—regardless of whether the bank robbery was attempted or completed. And “[o]ne cannot assault a person, or jeopardize his or her life with a dangerous weapon, unless one uses, attempts to use, or threatens physical force.”

Williams v. United States, No. 23-5975, 2024 WL 1911097, at *4 (6th Cir. Apr. 17, 2024) (quoting United States v. Johnson, 899 F.3d 191, 204 (3d Cir. 2018)).

Bolden and Courts in this Circuit, disagree, suggesting that Garner, Sawyer, and the Third Circuit's Model Jury Instructions require application of common law attempt to § 2113(d). See Humbert, ––– F.Supp.3d at ––––, 2024 WL 2883657, at *1; Gordon, 2024 WL 1585919, at *1. They do not. Although Garner used the phrase “armed bank robbery,” the case dealt only with bank robbery under § 2113(a). See Garner, 915 F.3d at 169. Garner plainly did not address the present issue—whether attempt under § 2113(d) constitutes a § 924(c) predicate crime of violence—and is thus not binding here. See id.; United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38, 73 S.Ct. 67, 97 L.Ed. 54 (1952) (“A case is not binding precedent on a point not raised by the parties or discussed in the Court's opinion.”). Indeed, Garner's sole § 924(c) challenge—which was rejected—was that he did not actually commit the predicate § 2113(a) crime. Garner, 915 F.3d at 171.

Moreover, Sawyer and the Third Circuit's Jury Instructions—neither of which are binding—conflict with § 2113(d)’s text and structure, which differs from § 2113(a). Given the structure of § 2113(a), it is not clear whether “by force and violence, or by intimidation”—which directly precedes “takes”—modifies “attempts to take.” By contrast, given the structure of § 2113(d), it is difficult to understand how “assaults any person, or put in jeopardy the life of any person by the use of a dangerous weapon or device”—which directly follows “attempting to commit”—could apply to “committing” but not to “attempting to commit.” To commit an attempted armed bank robbery under § 2113(d), a defendant thus must “assault any person, or put in jeopardy the life of any person by the use of a dangerous weapon or device.” 18 U.S.C. § 2113(d).

iii. Attempted armed bank robbery does not involve an element of force “against another”

The inquiry does not end there. A crime of violence must involve “the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c) (emphasis added).

In United States v. Jordan, the defendant was convicted of gun charges under § 924(c) and armed bank robbery under § 2113(d) in relation to a § 2113(a) bank robbery. 96 F. 4th 584, 588 (3d Cir. 2024). The defendant challenged his § 924(c) convictions, arguing that completed armed bank robbery does not qualify as a crime of violence because § 2113(d) criminalizes “put[ting] in jeopardy the life of any person.” 96 F. 4th 584, 594 (3d Cir. 2024); 18 U.S.C. § 2113(d) (emphasis added). The Court agreed that the phrase “any person” differs from “the person ․ of another” but nonetheless denied the Motion. Jordan, 96 F.4th at 594. The Court explained that because the completed armed bank robbery necessarily incorporated § 2113(a)–which involves force against “the person or presence of another”—it too involved force against another. Id.; 18 U.S.C. § 2113(a). Accordingly, completed armed bank robbery under § 2113(d) qualifies as a crime of violence. Jordan, 96 F.4th at 594.

The Government suggests that under Jordan, attempted armed bank robbery must also then encompass violence against the person of another. (Doc. No. 136 at 4 n.2.) I disagree. Attempted armed bank robbery does not incorporate all of § 2113(a)’s elements. See 18 U.S.C. § 2113(d). Attempted armed bank robbery requires only that a defendant attempt a § 2113(a) bank robbery. As I have discussed, attempt under § 2113(a) is distinct from that under § 2113(d)—it does not require force or intimidation. See infra Section III.A.ii. (comparing structures of § 2113(a) and § 2113(d)); Garner, 915 F.3d at 167 (elements of § 2113(a) attempt are (1) intent and (2) “performed an act amounting to a ‘substantial step’ toward the commission of that crime”). Thus, unlike armed bank robbery, attempted armed bank robbery may not rely on § 2113(a)’s force language to meet § 924(c)’s definition of crime of violence. And, because “any person” in § 2113(d) may include the defendant himself, attempted armed robbery under § 2113(d) may not, in certain circumstances, involve force “against another.” Accordingly, attempted armed bank robbery may not serve as a § 924(c) predicate crime of violence.

Because attempted armed bank robbery does not constitute a crime of violence, I will vacate Bolden's § 924(c) conviction.

B. Resentencing

Bolden asks me to reduce his sentence by 60 months without conducting a plenary resentencing. (Doc. 134 at 23-24.) In exchange, Bolden will concede that I need not decide the ACCA issue. (Id.) The Government “strongly objects to that proposal.” (Doc. No. 136 at 2 n.1.)

Section 2255 does not limit my “resentencing options” to “the portion of the sentence directly associated with the vacated conviction.” United States v. Davis, 112 F.3d 118, 121 (3d Cir. 1997). Rather, the sentencing package doctrine “allows resentencing on all counts when a multicount conviction produces an aggregate sentence or ‘sentencing package.’ ” Id. at 122. Where only a § 924(c) count is vacated, I may resentence a defendant on all counts because of “the interdependence of the counts for Guideline sentencing purposes.” Id. at 121. The Third Circuit explained:

Following a § 924(c) conviction, the law requires the imposition of a five year sentence to be served consecutively to any other term of imprisonment associated with an underlying drug count [or crime of violence]. Thus, § 924(c) clearly contemplates an aggregate sentence some five years longer than that which would result from the underlying ․ offense.

Id.; see id. (“[W]here a sentencing judge imposed a multicount sentence aware that a mandatory consecutive sentence is to be tacked on to it and the mandatory sentence is later stricken, the judge is entitled to reconsider the sentence imposed on the remaining counts.” (quoting Merritt v. United States, 930 F. Supp. 1109, 1113-14 (E.D.N.C. 1996)).

Moreover, the Guidelines mandate base offense level increases for certain offenses including drug and robbery offenses, where commission of the offense involved a firearm. See, e.g., U.S.S.G. § 2B3.1(b)(2). Under the Guidelines, however, the enhancements may not be applied when a related sentence under § 924(c) is also imposed. U.S.S.G. § 2K2.4, Commentary Background. “In fact, the Guidelines explicitly acknowledge that a conviction under § 924(c)(1) ‘may affect the offense level for other counts.’ ” Davis, 112 F.3d at 121. Accordingly, the Davis Court concluded that:

Clearly, the § 924(c) offense and the underlying offense are interdependent and result in an aggregate sentence, not sentences which may be treated discretely. If the district court were to vacate the term associated with the § 924(c) count and not resentence on the remaining counts, Davis would not receive the ․ enhancement required for the remaining counts under the Sentencing Guidelines and his sentence would not be in conformity with the law.

112 F.3d at 121–22 (internal citations omitted).

Here, Bolden's § 924(c) conviction precluded a six-level enhancement on Count 7. (See PSR § 41.) Accordingly, vacatur of his § 924(c) conviction (Count 4) would affect the overall Guidelines calculation and sentence on other counts. (Id.); U.S.S.G §§ 2B3.1(b)(2), 2K2.4, Commentary Background. Because Bolden's sentence thus “constituted an aggregate sentence that was based upon the proven interdependence between the remaining counts and ․§ 924(c) conviction,” “resentencing on all counts is the only result consistent with the punishment prescribed by law.” Davis, 112 F.3d at 121, 123.

I will thus conduct a de novo resentencing on all counts.

C. Section 924(e) ACCA Challenge

Bolden challenges his ACCA enhancement. The Government argues that I need not reach this issue because relief will not affect Bolden's sentence. Because I will conduct a de novo resentencing, I will reach this issue and grant Bolden relief.

Any person who is convicted under § 922(g) as a convicted felon in possession of a firearm is subject to a fifteen-year mandatory minimum if he has three prior convictions “for a violent felony or a serious drug offense.” 18 U.S.C. § 924(e). Section 922(g) otherwise carries a ten-year maximum sentence. Id. § 924(a)(2).

At the time of Bolden's conviction, ACCA defined a “violent felony” as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another” or “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e). In Johnson, the Supreme Court invalidated the latter provision, known as the “residual clause.” 135 S. Ct. at 2256 (2015). Accordingly, a § 924(e) predicate offense only constitutes a violent felony if it satisfies the first clause—the “elements clause.”

Bolden had four prior Pennsylvania felony convictions: one for drug trafficking and three for robbery. (See PSR ¶¶ 69–72.) In his Rule 11(c)(1)(C) Plea Agreement, he stipulated that he was subject to the § 924(e) enhancement, and a corresponding Guidelines enhancement, because of these prior convictions. (See Plea Agmt. ¶ 9(a), Doc. No. 101 (“The defendant agrees and stipulates that his prior convictions qualify him as an armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 and as a career offender under U.S.S.G. § 4B1.1.”).) Bolden now argues that in light of Johnson, his Pennsylvania robbery convictions do not qualify as “violent felonies” and he is not subject to § 924(e)’s fifteen-year mandatory minimum. See 18 U.S.C. § 924(e)(2)(B)(i).

The Third Circuit has held that Pennsylvania's robbery statute is divisible, and, thus, certain subsections may qualify as “violent felonies” whereas others may not. United States v. Blair, 734 F.3d 218, 223-25 (3d Cir. 2013). I must thus use a modified categorical approach, reviewing any Shepard documents available to determine which subsection of the statute formed the basis for Bolden's prior convictions. Id. (“[G]iven the clearly laid out alternative elements of the Pennsylvania robbery statute, it is obviously divisible and, therefore, a sentencing court can properly look to the kinds of documents listed ․ [in] Shepard to determine which subsection was the basis of [the defendant's] prior convictions.”).

The Shepard documents show that Bolden pled guilty to first degree robbery in only one case and second-degree robbery in the other two cases. (See Doc. No. 134-1.) The plea hearing transcript further demonstrates that Bolden's second-degree robbery convictions fell under subsection (iv) of Pennsylvania's robbery statute. (See id. at 18); 18 Pa. Cons. Stat. §§ 3701(b).

Subsection (iv) applies where an individual, “in the course of committing a theft, “inflicts bodily injury upon another or threatens another with or intentionally puts him in fear of immediate bodily injury.” 18 Pa. Cons. Stat. §§ 3701(a)(1)(iv). Where no mens rea is specified within a statute or section of a statute, Pennsylvania law presumes that an intentional, knowing, or recklessness mens rea satisfies the statute. See 18 Pa. Cons. Stat. § 302(c). “[C]rimes that could be committed with a mens rea of recklessness do not qualify as violent felonies under ACCA's element of force clause.” United States v. Harris, 68 F.4th 140, 141 (3d Cir. 2023). The first phrase of subsection (iv)—“inflicts bodily injury upon another or threatens another with ․ immediate bodily injury”—lacks mens rea and may thus be committed recklessly. See United States v. Giles, No. 94-20-01, 2021 WL 5418158, at *4 (E.D. Pa. Nov. 19, 2021) (Subsection (iv) of Pennsylvania robbery statute may be violated recklessly).

The Government asks me further todivide the Pennsylvania robbery statute. Relying on the plea hearing documents, the Government contends that Bolden was convicted under the second clause of section (iv), which requires intentionality and constitutes a violent felony. (Doc. No. 136 at 10-11.) The Government provides no support for its contention that the subsections of Pennsylvania's robbery statute are divisible, however.

Indeed, the Third Circuit has suggested—and district courts in this Circuit have held—that they are not. See United States v. Copeland, No. 16-73, 2023 WL 8456128, at *7 (M.D. Pa. Dec. 6, 2023) (collecting cases). To determine if a statute's section or subsection is divisible, I must ask: “are these alternate means or alternate elements?” United States v. Steiner, 847 F.3d 103, 119 (3d Cir. 2017) (citing Mathis v. United States, 579 U.S. 500, 518-19, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016)). Although a statute that lists alternative elements—thereby defining multiple crimes—is divisible, a statute that “enumerates various factual means of committing a single element” is not. Mathis, 579 U.S. at 505-06, 136 S.Ct. 2243.

The structure of subsection (iv) demonstrates that the three alternative acts are multiple means of committing one robbery offense, not separate elements or offenses. Although subsections (i)-(iii) separate similar acts into different subsections, constituting alternative elements of distinct crimes of first-degree robbery, the three acts in subsection (iv) were disjunctively included within one subsection as alternative means or illustrative examples of “satisfying a single element of a single crime.” Mathis, 579 U.S. at 506, 136 S.Ct. 2243; see United States v. Parrott, 585 F. Supp. 3d 661, 666 (E.D. Pa. 2022) (“[T]he alternatives in § 3701(a)(1)(iv) are contained in one subsection and are listed disjunctively. This further supports a finding that the alternatives are means and not elements.”); Giles, 2021 WL 5418158, at *3 (“If subsection (iv) was meant to be read as encompassing multiple robbery offenses rather than describing multiple means of committing the single offense of second-degree robbery, this would raise the question of why these multiple offenses were compressed into the same single subsection of the statute in the first place.”); United States v. Blakney, No. 11-562-1, 2021 WL 3929694, at * 2 (E.D. Pa. Sept. 2, 2021) (Subsection (iv) is indivisible, in part because “[i]t is disjunctively phrased” and “allows for a conviction based on one of three different acts having different mens rea requirements”); see also United States v. Singleton, 252 F. Supp. 3d 423, 429 (E.D. Pa. 2017) (“If, for example, the statute provides different penalties for violations of its different alternatives, it is considered to list elements; if instead it is ‘drafted to offer illustrative examples,’ it lists means.” (quoting Mathis, 136 S. Ct. at 2256)).

Pennsylvania's model jury instructions for second-degree robbery support my conclusion. See United States v. Steiner, 847 F.3d 103, 119 (3d Cir. 2017) (relying in part on Pennsylvania Suggested Standard Jury Instructions for determining divisibility). The instruction requires the jury to find “two elements”: (1) that the defendant inflicted bodily injury on the victim or threatened the victim with immediate bodily injury or intentionally put the victim in fear of immediate bodily injury; and (2) that the defendant did so during a theft. Pennsylvania's Suggested Standard Criminal Jury Instructions § 15.3701(B) (3d ed. 2016). The alternative acts within the first element are thus means of satisfying that one element. See Blakney, 2021 WL 3929694, at * 1 (“The lack of a unanimity requirement demonstrates that subsection (iv) lists means by which the second element may be proven” and the subsection is thus indivisible). “[A] jury need not agree on which of subsection (iv)’s clauses a defendant violated in order to convict him of that offense.” Copeland, 2023 WL 8456128, *6.

Accordingly, subsection (iv) is not divisible, requiring the categorical approach. Because under that approach I am unable to determine that Bolden was not convicted for reckless conduct, his second-degree robbery convictions no longer qualify as ACCA predicate violent felonies. See Blakney, 2021 WL 3929694, at * 1.

As Bolden only has two predicate violent felonies, his § 922(g) charge carries a ten-year maximum sentence. I will thus grant his Motion on this claim, vacate his sentence, and resentence accordingly.

D. Career Offender Guideline Challenge

Insofar as Bolden challenges application of the career offender Guideline, his claim fails. The Third Circuit has held that a challenge to an incorrect-offender designation under the advisory Sentencing Guidelines is not cognizable under § 2255. United States v. Folk, 954 F.3d 597, 600, 601 (3d Cir. 2020).

E. Section 924(e) Rehaif Challenge

Although Bolden's counseled brief does not address Rehaif, because it “adopts” Bolden's pro se brief, I will address Bolden's challenge to his § 924(e) conviction under Rehaif.

Section 922(g) makes unlawful the possession of firearms by felons. 18 U.S.C. § 922(g). Under § 924(a)(2), anyone who “knowingly violates” § 922(g) is subject to a 10-year mandatory minimum. 18 U.S.C. § 924(a)(2). In Rehaif, the Supreme Court held that the Government “must show that the defendant knew he possessed a firearm and also knew that he had the relevant status when he possessed it.” Rehaif, 588 U.S. at 227, 139 S.Ct. 2191.

Because Bolden pled guilty, I will assume he challenges the knowing and voluntary nature of his guilty plea. In stating the elements of § 924(e), the Government's Guilty Plea Memorandum did not include knowledge of a defendant's status. (See Doc. 97 at 7.) This defect alone does not entitle Bolden to relief, however.

To bring a challenge under Rehaif, Bolden has the burden “of showing that, if the District Court had correctly advised him of the mens rea element of the offense, there is a ‘reasonable probability’ that he would not have pled guilty.” Greer v. United States, 593 U.S. 503, 141 S. Ct. 2090, 2097, 210 L.Ed.2d 121 (2021). “In a felon-in-possession case where the defendant was in fact a felon when he possessed firearms, the defendant faces an uphill climb.” Id. at 2097. “The reason is simple: If a person is a felon, he ordinarily knows he is a felon.” Id. “Thus, absent some reason to conclude otherwise, a jury will usually find that a defendant knew he was a felon based on the fact that he was a felon.” Id. (emphasis in original). “A defendant considering whether to plead guilty would recognize as much and would likely factor that reality into the decision to plead guilty.” Id.

Bolden does not deny that he knew he was a “felon” at the time of the instant offense. Bolden had five prior felony convictions: convictions punishable by a term of imprisonment exceeding one year. He entered guilty pleas in at least three of those cases, and he served more than one year imprisonment on several of those convictions. See United States v. Davis, No. 20-3325, 2024 WL 1596669, at *2 (3d Cir. Apr. 12, 2024) (“Based on those signed guilty pleas, a rational trier of fact could find beyond a reasonable doubt that Davis had knowledge of his status as a felon when he possessed a firearm.”). “Those prior convictions are substantial evidence that [Bolden] knew [he] [was a] felon[ ].” Greer, 141 S. Ct. at 2093; United States v. Adams, 36 F.4th 137, 152 (3d Cir. 2022) (“Greer, in effect, created a presumption that the ‘knowledge-of-status’ element is satisfied whenever a § 922(g)(1) defendant is, in fact, a felon.”). “His numerous, readily available felony convictions would have made it impossible to credibly appeal to a jury that he was oblivious to that reality.” Forler v. United States, No. 120-00333, 2022 WL 226839, at *4 (S.D. Ind. Jan. 26, 2022).

Accordingly, Bolden is not entitled to relief under Rehaif.

IV. CONCLUSION

In sum, I will grant Bolden's Motion as to Count 4 and the application of the § 924(e) enhancement on Count 7. I will thus vacate Bolden's conviction on Count 4, vacate Bolden's sentence, and conduct a de novo resentencing.

* * *

AND NOW, this 23rd day of July, 2024, it is hereby ORDERED that Bolden's § 2255 Motion (Doc. No. 119) is GRANTED in part and DENIED in part, as follows:

1. Bolden's challenge to Count 4 is GRANTED. Bolden's conviction for violating 18 U.S.C. § 924(c) at Count 4 is thus VACATED.

2. Bolden's challenge to his sentence under § 924(e) on Count 7 is GRANTED.

3. Bolden's remaining claims are DENIED.

4. Bolden's sentence is VACATED.

An Order scheduling a resentencing hearing and the preparation of a new Presentence Investigation Report will issue.

AND IT IS SO ORDERED.

Paul S. Diamond, District Judge