ALBUQUERQUE, N.M. (KRQE) – There is a chance — a slim one — that Byron Shane Chubbuck will walk out of prison a free man. It might not be pretty. Responsible for more than one dozen bank robberies and suspected of several more during seven weeks following an escape in 2000 and 2001, Chubbuck received an 80-year sentence.
If Chubbuck can convince a federal judge that his sentence for using a gun during his escape was based on an unconstitutionally vague law, he could knock 25 years off a sentence that currently puts his release date at April 18, 2071.
He would be 79 years old.
An initial review of his case by a federal Magistrate Judge Carmen E. Garza suggests Chubbuck could win his appeal. The magistrate agreed that the language used to add two and a half decades to Chubbuck’s sentence didn’t properly define his escape as a crime of violence. The review recommended the court vacate his sentence. Whether Chubbuck is ultimately successful depends on whether or not a federal district court judge agrees with the review.
Chubbuck is one of hundreds of convicted felons — perhaps more — across the country who claim that their sentences were based on language that was substantially similar to a law struck down by the U.S. Supreme Court last year.
The court’s opinion in Johnson v. United States, held that the Armed Career Criminal Act didn’t define clearly enough what crimes should be deemed violent felonies. Called the residual clause, it defines a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.”
In Chubbuck’s case, the law defines a crime of violence as a crime that “involves a substantial risk that physical force against the person or property of another may be used.” Gone is the phrase “serious potential risk of physical injury to another” that defined the Johnson decision.
Chubbuck’s attorney, Todd Coberly of Santa Fe, argued the two laws attempt to define the same kinds of crimes with the same kind of language. Expecting judges across the country to interpret vague language the same way is unrealistic, Coberly said.
“Finally the court just threw up its hands and said, ‘We’ve had enough. There’s no way to consistently apply this.'”
“What’s the difference between ‘substantial’ and ‘serious potential?'” said Coberly, who received the case as part of the pool of attorneys who take on federal defense work under the Criminal Justice Act.
“If we’re going to lock people up and throw away the key,” Coberly said, “we want to make sure that we are following the laws and we’re doing that with due process.”
The U.S. Attorney’s Office in Albuquerque argued that even subtle differences in language need to be acknowledged. As such, the office’s brief filed in response to the magistrate judge’s recommendations said, the sentence needs to be upheld.
Chubbuck gained notoriety in the late 1990s and early 2000s with a string of bank robberies in Albuquerque. Because he was purported to have sent some of his take to Zapatista rebels in Mexico, Chubbuck earned the moniker “Robin the Hood.”
Caught by authorities and convicted of 13 bank robberies, the bandit escaped after a court hearing in December, 2000, and was on the lam for seven weeks. The FBI suspected him of at least eight more bank jobs when he was finally caught for good on February 7, 2001.
A decision on Chubbuck’s case is not expected for several weeks.
Meanwhile, the Supreme Court continues to grapple with how broadly to apply the Johnson decision. The same language that appears in the Armed Career Criminal Act appears in sentencing guidelines, immigration law, and, in Chubbuck’s case, the federal law defining the crime of using, brandishing and carrying a firearm during a crime of violence.
The Supreme Court agreed to hear arguments on the immigration during its fall term that began this month.