United States District Court, D. Montana, Great Falls Division
CHARELS C. LOVELL, SENIOR UNITED STATES JUDGE
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.
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).
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).
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).
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
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.
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
(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.
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.
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.
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.
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.
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.
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.
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.
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
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.
Second Degree Burglary, Snohomish County, WA (1980) (PSR
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).)
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).
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.
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.
60.04 Burglary - Second Degree - Elements (West, December
2014, current as of July 2008).
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
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).
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).
Application of Descamps/Johnson.
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.
Second Degree Robbery, Snohomish County, WA ...