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United States v. Huttinger

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

May 11, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
BRICE HUTTINGER, Defendant/Movant.

          ORDER GRANTING § 2255 MOTION AND SETTING RE-SENTENCING

          Brian Morris, United States District Court Judge

         This matter comes before the Court on Defendant/Movant Huttinger's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. He seeks relief under Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015).

         I. Background

         The Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), mandates a fifteen-year minimum sentence and authorizes a maximum sentence of life in prison if a defendant convicted of being a felon in possession of a firearm has three previous convictions for a serious drug offense or a violent felony. If the defendant does not have three qualifying convictions, the ACCA does not apply, and the defendant faces a maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2).

         A grand jury indicted Huttinger on April 7, 2008, on one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count 1); and one count of distribution of marijuana in violation of 21 U.S.C. § 841(a)(1) (Count 2). As to Count 1, the caption of the indictment stated the penalty was 15 years to life in prison. See Indictment (Doc. 1) at 1-2.

         The parties reached a plea agreement. As relevant here, Huttinger agreed to plead guilty to Count 1, being a felon in possession of a firearm, and the United States agreed to dismiss Count 2 and to seek a three-level reduction in Huttinger's offense level for his acceptance of responsibility. See Plea Agreement (Doc. 24) at 2 ¶ 5, 7-8 ¶¶ 12-13. Huttinger entered a guilty plea to Count 1 on May 16, 2013. See Minutes (Doc. 27).

         A presentence report was prepared. Huttinger's base offense level was found to be 33. He received a three-level reduction for acceptance of responsibility and timely notification of plea for a total offense level of 30. His criminal history category was VI. His advisory guideline range was 180 to 210 months. See Sentencing Tr. (Doc. 43) at 5:9-22. The Court sentenced Huttinger to serve 210 months in prison, to be followed by a five-year term of supervised release. See Minutes (Doc. 36); Judgment (Doc. 37) at 2-3. Huttinger appealed.

         The Ninth Circuit affirmed the sentence on October 28, 2009. Mem. (Doc. 48) at 2, United States v. Huttinger, No. 09-30006 (9th Cir. Oct. 28, 2009) (unpublished mem. disp.). The United States Supreme Court denied Huttinger's petition for writ of certiorari on January 11, 2010. Clerk's Letter (Doc. 51) at 1.

         Huttinger filed a motion on February 22, 2010, to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. The Court denied the motion and a certificate of appealability on May 25, 2010. (Doc. 57). The Ninth Circuit denied a certificate of appealability on December 20, 2010. (Doc. 60). On June 26, 2015, the United States Supreme Court in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 2557 (2015), held that the residual clause in the Armed Career Criminal Act was so vague that “[i]ncreasing a defendant's sentence under the clause denies due process of law.” Huttinger filed a second motion under 28 U.S.C. § 2255 in this Court on September 15, 2015. The Court denied the motion for lack of jurisdiction on September 16, 2015. The Court also denied a certificate of appealability. See Order (Doc. 68) at 2-3. Huttinger applied to the Ninth Circuit on May 24, 2016, for leave to file a second or successive motion under 28 U.S.C. § 2255. The Ninth Circuit granted his application on November 8, 2016. See Order (Doc. 69) at 1-2, Huttinger v. United States, No. 16-71652 (9th Cir. Nov. 8, 2016). Huttinger filed the instant § 2255 motion in this Court as of May 24, 2016. See Orona v. United States, 826 F.3d 1196, 1199-1200 (9th Cir. 2016) (per curiam).

         Although the Ninth Circuit granted Huttinger leave to proceed with a second or successive § 2255 motion, “[a] district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” 28 U.S.C. § 2244(b)(4). Johnson presents a new rule of constitutional law made retroactive, in Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016), to cases on collateral review. The rule previously remained unavailable, as no legal authority had held the ACCA's residual clause unconstitutionally vague until Johnson. This development meets the requirement of 28 U.S.C. § 2255(h)(2).

         II. Motion to Dismiss

         The United States seeks to dismiss Huttinger's motion as untimely and for lack of jurisdiction. See Answer (Doc. 36) at 1-3, 12. An untimely claim does not deprive the Court of jurisdiction. See, e.g., McQuiggin v. Perkins, __ U.S. __, 133 S.Ct. 1924, 1928 (2013). Further, a Johnson claim, regardless of its merits, proves timely if filed within one year of Johnson. See 28 U.S.C. § 2255(f)(3); Dodd v. United States, 545 U.S. 353, 357 (2005). Huttinger timely filed his motion. The motion to dismiss is denied.

         III. Analysis

         Huttinger had two prior convictions for a serious drug offense. See Presentence Report ¶¶ 37-38. Consequently, the question arises whether any of Huttinger's other convictions constituted a “violent felony.” The Court must address Huttinger's conviction for felony assault. The parties agree that this conviction was incurred under Mont. Code Ann. § 45-5-202(2)(b) (1995). See Information at 1 (Doc. 70-1 at 1), State v. Huttinger, No. CDC-95-583 (Mont. 8th Jud. Dist. Ct. Dec. 29, 1995); Plea Agreement (Doc. 70-1 at 5-6), Huttinger, No. CDC-95-583 (Mont. 8th Jud. Dist. Ct. May 9, 1995).

         A. “Violent Felony”

         Johnson invalidated the ACCA's residual clause. After Johnson, the ACCA, in effect, defines a “violent felony” as a felony 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, [or] involves use of explosives[.]

18 U.S.C. § 924(e)(2)(B). Huttinger's sentence under the ACCA remains proper if his Montana conviction either meets the elements of the “force clause” in subsection (i), or is equivalent to one or more of the “enumerated offenses” in subsection (ii). The parties agree that felony assault fails to meet the elements of any of the offenses listed in subsection (ii). The force clause remains the sole issue here.

         1. Categorical Comparison of State Elements to Federal Elements

         To apply the ACCA, federal sentencing courts must consider convictions entered in more than 50 jurisdictions, containing widely varying elements, to determine whether an individual defendant's criminal history meets the ACCA's terms. The Supreme Court has applied the “categorical analysis” to decide the issue. The “categorical” method focuses exclusively on the elements of a predicate conviction, as defined by the jurisdiction of conviction, and compares those element to the elements of the ACCA, as defined by federal law. See Taylor v. United States, 495 U.S. 575, 590-92 (1990). The facts of Huttinger's conviction for felony assault prove “quite irrelevant” under this analysis. Moncrieffe v. Holder, __ U.S. __, 133 S.Ct. 1678, 1684 (2013) (internal quotation marks omitted).

         In comparing Huttinger's prior convictions with the ACCA elements, the Court may consider only “what the state conviction necessarily involved, ” as if every conviction “‘rested upon nothing more than the least of the acts' criminalized” by the state statute. Id. (quoting Johnson I, 559 U.S. at 137). The federal elements must be met in every realistic instance of conviction under the state statute. For this reason, case law applying the state statute to specific acts or defining the issues a jury must decide can be useful in determining whether the state statute meets the elements of the federal ...


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