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United States v. Hope

United States District Court, D. Montana, Great Falls Division

March 28, 2017




         Before the Court is Defendant's Motion to Vacate, Set Aside, or Correct a Sentence Under 28 U.S.C. 2255. The United States opposes the motion. Defendant Hope requests that the Court vacate Defendant's sentence and resentence him to a term not greater than a statutory maximum term of ten years imprisonment followed by three years of supervised release.


         Defendant Hope was convicted in May 2008 by jury trial of the offense of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). This Court sentenced Defendant on September 19, 2008, to a term of imprisonment of 312 months, followed by 60 months of supervised release. Typically, a felon-in-possession sentence carries the maximum penalty of ten years imprisonment. 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act of 1984 (ACCA), imposes a fifteen-year mandatory sentence upon felons who commit certain crimes involving firearms when the felon has prior convictions for three violent felonies and/or three serious drug crimes. 18 U.S.C. § 924(e)(1). It is apparent that at the 2008 sentencing hearing both parties simply assumed that Defendant Hope had three predicate offenses under the ACCA, and therefore no objection was made to the Presentence Report (“PSR”), which recommended application of the ACCA's fifteen-year mandatory minimum (PSR ¶77). (ECF No. 49-1.) In addition, the Presentence Report failed to identify precisely which three prior convictions served as the ACCA predicate offenses. However, this lack of identification of the predicate offenses is unsurprising given the numerous convictions in Defendant's lengthy criminal history and the availability of the residual clause at that time under the ACCA definition of violent felony. 18 U.S.C. § 924(e)(2)(B)(ii).

         Defendant's pertinent prior convictions, as presented by the government in response to Defendant's motion, are as follows:

1. Washington second-degree burglary (PSR ¶34);
2. Washington second-degree robbery (PSR ¶35);
3. Washington first-degree burglary (PSR ¶36);
4. Oregon first-degree burglary (PSR ¶¶41-45);
5. Federal unarmed bank robbery (PSR ¶46).

         Legal Standard

         A federal prisoner may challenge his or her sentence by filing a motion to vacate, set aside or correct the sentence in the court that imposed the sentence. 28 U.S.C. § 2255. This collateral attack on the sentence may be filed on “the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack....” 28 U.S.C. § 2255(a).

         Procedural Bars

         The government has posed two procedural bars to the motion: first, that the motion is untimely, and, second, that the Motion is procedurally defaulted because the claims were not raised on direct appeal. The Court finds these procedural bars to be without merit. Hope's motion is timely. Johnson v. United States, 135 S.Ct. 2551 (2015), was decided on June 26, 2015. Almost one year later, on April 18, 2016, the Supreme Court decided that the Johnson holding was a new substantive rule to be applied retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). Hope filed his motion just two months later, on June 13, 2016. A motion filed pursuant to § 2255 is timely when filed within one year from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2253(f)(3). It is indisputable that Hope filed his motion within the one-year time frame.

         Neither has Hope procedurally defaulted his claims. Typically, “to obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) ‘cause' excusing his double procedural default, and (2) ‘actual prejudice' resulting from the errors of which he complains.” United States v. Frady, 456 U.S. 152, 167-68 (1982). Cause is found when “the factual or legal basis for a claim was not reasonably available to counsel....” Murray v. Carrier, 477 U.S. 478, 488 (1986). That is the case here. In addition, a claim that the ACCA's now-invalid residual clause was used to a defendant's detriment at sentencing (by substituting a fifteen-year mandatory minimum for a ten-year maximum penalty) would be an error of a magnitude that would undoubtedly lead to actual prejudice to the defendant. The Court therefore finds that both cause and prejudice have been sufficiently demonstrated that the merits of Hope's claim should be examined.


         The Armed Career Criminal Act provides that

a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years....

18 U.S.C. § 924(e). The ACCA further provides that

the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) 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)(2)(B). Subsection (i) is the elements clause, sometimes called the force clause. Subsection (ii) contains both the enumerated-offenses clause and the now-invalid residual clause.

         In Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), the Supreme Court set forth the “categorical approach” to determining whether a prior conviction (Taylor's prior conviction for second-degree burglary) qualified as a predicate offense under subsection (ii). The categorical approach requires a court to look at the statutory definition to determine its elements and then to compare them to the elements of the generic offense, which in Taylor was generic burglary. Generic burglary requires the unlawful or unprivileged entry into a building or structure, with intent to commit a crime.” Id. at 599, 110 S.Ct. 2143. If the elements of the statutory offense are identical to or narrower than the generic elements, then the statutory offense qualifies as a violent felony under subsection (ii). Obviously, the facts of the prior offense are not to be considered under the categorical approach. Id. at 600, 110 S.Ct. 2143. If the elements of the prior offense are broader than the generic elements, the ACCA definition of violent felony cannot be met and the ACCA does not apply.

         A variation on the categorical approach was recognized by Taylor for offenses in which alternative elements are presented, with some alternatives meeting the generic elements test and other alternatives not meeting the generic elements test. Such statutes are considered “divisible, ” and these elements can be tested by examining the charging paper and jury instructions to determine whether the elements of the offense of conviction were the same as the generic elements. Id. at 602, 110 S.Ct. 2143.

         In Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), this exception was applied to a burglary statute that covered entry into not just buildings, but boats and cars also. 544 U.S. at 17, 125 S.Ct. 1254. This “modified categorical approach” allowed the court to examine the plea agreement and plea transcript to determine whether the defendant pled guilty to entering a building, a boat, or a car. Id. at 26, 125 S.Ct. 1254. Only entry into a building would satisfy the generic elements of burglary.

         Thus, Taylor and Shepard established the court's approach for both indivisible statutes (the categorical approach) and divisible statutes (the modified categorical approach). It is important to note, however, that the modified categorical approach can be utilized only for divisible statutes. An indivisible statute calls for use of the formal categorical approach only, wherein the facts must not be taken into consideration even when the facts of the offense align perfectly with the generic elements.

         In Descamps v. United States, 133 S.Ct. 2276 (2013), the Supreme Court examined California's burglary statute (California Penal Code Ann. § 459) to determine whether it was a violent felony within the meaning of the ACCA. The Ninth Circuit had affirmed the district court's ruling that a § 459 conviction did qualify as a violent felony under the ACCA, relying on its prior decision in United States v. Aguila-Montes de Oca, 655 F.3d 915 (9th Cir. 2011) (abrogated by Descamps v. United States, 133 S.Ct. 2276 (2013)), allowing use of the modified categorical approach for a statute that sweeps broader than the generic elements. Section 459 (West 2010) provided that any entry “with intent to commit grand or petit larceny or any felony is guilty of burglary.” Thus, even shoplifting would fall under this burglary statute because entry need not be unlawful. This state burglary offense therefore sweeps broader than generic burglary, which requires an unlawful entry. By applying the modified categorical approach and examining a plea transcript, the Ninth Circuit determined that Descamps had, in fact, broken and entered a grocery store, and therefore was convicted of a violent felony for ACCA purposes.

         The Supreme Court reversed, deciding that whether Descamps did break and enter or admitted breaking and entering was of no consequence. With an indivisible statute, the facts do not matter. Section 459 was an indivisible burglary statute that was broader than generic burglary, so the categorical elements test could not be satisfied. Descamps, 133 S.Ct. at 2286. The problem, from the point of view of the Supreme Court, is that Descamps' sentence was doubled, beyond the statutory maximum, without a jury finding the generic elements, raising Sixth Amendment concerns. The ACCA is meant to be an “on-off switch, directing that a prior crime would qualify as a predicate offense in all cases or in none.” Id. at 2287. Descamps teaches that committing a generic burglary is an insufficient basis for application of the ACCA. Only a conviction for a generic burglary equivalent will do. Id. at 2288.

         Two years later, in 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2552 (2015), which struck down the “residual clause” of the ACCA's violent felony definition that included any offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. 924(e)(2)(B). The Court held that the residual clause violated the Fifth Amendment because the clause was so vague that it failed to give fair notice of punishable conduct.

         The issue now before the Court is to determine whether Defendant Hope was sentenced under the residual clause of the ACCA. If it is uncertain whether Hope's sentence was imposed under the residual clause, the Court must determine whether the ACCA mandatory minimum sentence was properly applied to his sentencing calculation. A review of the Court's sentencing hearing indicates that no party questioned the application of the ACCA to Defendant's sentence. The Presentence Report applies the ACCA without comment as to the nature of his predicate offenses. PSR ¶¶ 21-22. Because Defendant was presumed to be an armed career criminal, his Offense Level of 34 was set by U.S.S.G. 4B1.4, his Criminal History Category was VI, and his Guideline Range was 262-327 months. Defendant was sentenced to 312 months imprisonment.

         Thus, this Court must examine Defendant Hope's criminal history to determine the nature of his prior convictions under the ACCA. The government asserts that most of the statutory offenses in Hope's criminal history satisfy the definition of violent felony under the ACCA without resort to the residual clause. Defendant Hope argues that none of the statutory offenses satisfy the ACCA without resort to the residual clause. The Court examines all of these potential ACCA predicates in turn.

         1. Second Degree Burglary, Snohomish County, WA (1980) (PSR ¶34).

         (a) Statute. Second Degree Burglary in the State of Washington is defined as follows:

“A person is guilty of burglary in the second degree if, with the intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building other than a vehicle or a dwelling.”

RCW 9A.52.030(1). (The phrase “or a dwelling” was added to the statute in 1989, well after Defendant's 1980 conviction. 1989 Wash. Legis. Serv. 412 (West).)

         In interpreting a state statute, the Supreme Court looks to the state's definition statutes and case law to determine whether a categorical match with a generic crime exists. See Sykes v. United States, 131 S.Ct. 2267, 2271, 2275 (2011); James v. United States, 550 U.S. 192, 202-03 (2007); Gonzales v. Duenas-Alvarez, 549 U.S. 183, 190-94 (2007). In this case, the definition of “building” under RCW 9A.04.110(5) means “includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building.” State v. Lunstrum, 576 P.2d 453, 454 n.2 (Wash.Ct.App. 1978).

         (b) Generic Crime.

         The generic crime of burglary has “the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor v. United States, 495 U.S. at 599. In United States v. Grisel, 488 F.3d 844, 845 (9th Cir. 2007), the meaning of “building or structure” for purposes of the ACCA is defined as “a structure designed for occupancy that is intended for use in one place.” Id. (citing Taylor v. United States, 495 U.S. at 598, 110 S.Ct. 2143). This excludes vehicles, motor homes, boats, phone booths, vending machines, booths, tents, railroad cars, and other such places and objects that are not designed for occupancy or are not intended to be used in one place. See Grisel, 488 F.3d at 849.

         (c) Elements of the Offense. The elements of 2nd degree burglary in Washington are these:

(i) That on or about (date), the defendant entered or remained unlawfully in a building [other than a dwelling];
(ii) That the entering or remaining was with intent to commit a crime against a person or property therein; and
(iii) That this act occurred in the State of Washington.

         WPIC 60.04 Burglary - Second Degree - Elements (West, December 2014, current as of July 2008).

         (d) Categorical Match.

         A criminal statute will satisfy the ACCA predicate offense requirements only if it categorically matches the elements of the generic offense or is narrower than the elements of the generic offense. If the statute is broader than the generic, and thus criminalizes conduct beyond the generic offense, there is no categorical match. As the Supreme Court held in Descamps, if there is no categorical match, the analysis should terminate unless the statute is divisible with alternative elements that do match the generic elements. In this case, Washington's second degree burglary statute is not a categorical match because it does not contain the requirement that the defendant unlawfully enter the building, but instead merely requires that the defendant “enters or remains unlawfully in a building....” RCW 9A.52.030(1). As in the Descamps case, any entry, lawful or unlawful, can satisfy the Washington second-degree burglary statute, such that an offense such as shoplifting could satisfy the Washington statute despite not matching the elements of generic burglary. Another reason the statute is not a categorical match is due to the broad definition of “building” in Washington statutes, including as it does fenced areas, vehicles, railway cars, and cargo containers.

         (e) Divisibility.

         “The touchstone for determining divisibility is whether or not the jury must make a determination of the facts supporting the generic crime.” Rendon v. Holder, 764 F.3d 1077, 1084-90 (9th Cir. 2014). A statute is indivisible when the jury need not agree on a fact in order to convict. Lopez-Valencia v. Lynch, 798 F.3d 863, 869 (9th Cir. 2015).

         In this case, Washington's second-degree burglary statute is an indivisible statute because juror unanimity is not required for the type of building or the choice of entering or remaining unlawfully. United States v. Packer, 2016 WL 1253870 (E.D. Wash. 2016) (collecting cases).

         (f) Application of Descamps/Johnson.

         Washington's second-degree burglary statute is an indivisible statute that is broader than generic burglary. Therefore, it is not a categorical match with any enumerated offense under § 924(e)(ii) and cannot serve as a predicate conviction for a violent felony under the ACCA. Defendant Hope's 1980 conviction for second-degree burglary (PSR ¶ 34) is not a violent felony under the ACCA.

         2. Second Degree Robbery, Snohomish County, WA ...

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