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United States v. Baker

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

May 11, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ONEY JOSEPH BAKER, 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 Baker'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 Baker on February 6, 2013, on one count of interfering with commerce by threats or violence in violation of 18 U.S.C. § 1951(a) (Count 1); one count of possessing and brandishing a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) and (ii) (Count 2); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count 3).

         The parties reached a plea agreement. As relevant here, Baker agreed to plead guilty to Count 3, being a felon in possession of a firearm. The United States agreed to dismiss Counts 1 and 2 and to seek a three-level reduction in Baker's offense level for his acceptance of responsibility. Plea Agreement (Doc. 24) at 2-3 ¶ 2, 7 ¶ 6. Baker specifically admitted he had “three or more previous convictions for a violent felony or a serious drug offense and qualifies as an Armed Career Criminal under 18 U.S.C. § 924(e).” Id. at 3-4 ¶ 4. Baker entered a guilty plea to Count 3 on May 16, 2013. Minutes (Doc. 25).

         A presentence report was prepared. Baker's base offense level under U.S.S.G. § 2K2.1(a)(2) was 24. He received an upward adjustment for obstruction of justice, Presentence Report ¶¶ 18, 25, and a seven-level increase due to the operation of the Guidelines' armed career criminal provision, U.S.S.G. § 4B1.4. He received a three-level reduction for acceptance of responsibility. His total offense level of 30. His criminal history category was VI. His advisory guideline range was 180 to 210 months. The Court sentenced Baker to serve 210 months in prison, to be followed by a five-year term of supervised release. Minutes (Doc.

         30); Judgment (Doc. 31) at 2-3. Baker did not appeal. His conviction became final on August 30, 2013.

         On June 26, 2015, the United States Supreme Court held that a certain phrase in the Armed Career Criminal Act was so vague that “[i]ncreasing a defendant's sentence under the clause denies due process of law.” Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 2557 (2015). Baker timely filed his § 2255 motion on June 2, 2016, in which he claimed an entitlement to relief under the Court's decision in Johnson. See Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016) (making Johnson retroactively applicable to cases on collateral review); 28 U.S.C. § 2255(f)(3).

         II. Motion to Dismiss

         The United States seeks to dismiss Baker'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). Baker timely filed his motion. The motion to dismiss is denied.

         III. Analysis

         The ACCA applies to defendants who have “three previous convictions by any court . . . for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Baker concedes that his previous drug offense qualifies as a serious drug conviction. Two more convictions, both incurred under Montana law, remain at issue in the § 2255 motion: one for robbery in violation of Mont. Code Ann. § 45-5-401 (2005), and one for assault with a weapon in violation of Mont. Code Ann. § 45-5-213(1) (2005). See Presentence Report ¶¶ 27, 54-55. The ACCA does not apply to Baker if either of those convictions fails to qualify as a violent felony.

         A. “Violent Felony”

         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). Baker's sentence under the ACCA remains proper if each of his Montana convictions meets the elements of the “force clause” in § 924(e)(2)(B)(i), or is equivalent to one or more of the “listed offenses” in (B)(ii). The parties agree that both robbery and assault with a weapon fail to meet the elements of any of the offenses listed in subsection (ii). Only the force clause remains at 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 Baker's convictions for robbery and for assault with a weapon prove “quite irrelevant.” Moncrieffe v. Holder, __ U.S. __, 133 S.Ct. 1678, 1684 (2013) (internal quotation marks omitted).

         In comparing Baker'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 definition of a “violent felony.” See, e.g., Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007); Ortega-Mendez v. Gonzales, 450 F.3d 1010, 1016 (9th Cir. 2006).

         Regardless of the label that the state uses to describe the elements of a predicate conviction, a federal court must consider whether the full range of conduct captured by the state's elements falls within the range of conduct captured by the federal elements. The state statute need not expressly contain use of force as an element, so long as a conviction under the state statute necessarily will include proof beyond reasonable doubt that the defendant used or attempted to threaten to use physical force against the person of another.

         Conversely, even if the state statute expressly has “use of physical force” as an element, it will not meet the requirements of the ACCA's force clause if the state defines “physical force” in the common-law sense that includes “even the slightest offensive touching.” See Johnson I, 559 U.S. at 138-42; see also, e.g., United States v. Garcia-Jimenez, 807 F.3d 1079, 1087-89 (9th Cir. 2015) (holding that New Jersey's definition of “attempt” encompasses more conduct than federal “attempt, ” so that conviction for attempted aggravated assault failed to qualify as a “crime of violence” under commentary to U.S.S.G. § 2L1.2); Ortega-Mendez, 450 F.3d at 1016-18; United States v. Bonat, 106 F.3d 1472, 1475-76 (9th Cir. 1997).

         2. The Force ...


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