United States District Court, D. Montana, Missoula Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
W. Molloy Judge
matter comes before the Court on Defendant/Movant
Wright's motion to vacate, set aside, or correct the
sentence under 28 U.S.C. § 2255. The defendant is a
federal prisoner represented by Assistant Federal Defender
David Ness. The United States filed its answer on August 15,
2016. Wright replied on August 29, 2016.
seeks relief under Johnson v. United States, U.S.,
135 S.Ct. 2551 (2015), which was made retroactive to final
judgments by Welch v. United States, __ U.S. __, 136
S.Ct. 1257 (2016). He challenges the validity of his
conviction and also his designation as a career offender
under the United States Sentencing Guidelines.
March 2, 2011, Wright was indicted on one count of
"unlawfully us[ing] actual and threatened force to take
from the person or presence of B.B." one pound of
marijuana, a violation of "18 U.S.C. §§
1951(a) and 2" (Count 1); and one count of using and
brandishing a firearm during and in relation to a crime of
violence, or aiding and abetting someone else who did so, a
violation of 18 U.S.C. §§
924(c)(1)(A)(ii)and2(Count2). Indictment (Doc. 1) at 2-3.
Wright pled guilty to Count 2. Pursuant to a plea agreement,
United States dismissed Count 1. Plea Agreement (Doc. 20) at
2-3 ¶ 3.
mandatory minimum sentence was seven years. See 18
U.S.C. § 924(c)(1)(A)(ii); Plea Agreement at 2 ¶ 2.
The maximum authorized sentence was life. At sentencing,
Wright was designated a career offender under the Sentencing
Guidelines. His total offense level was 34, and his criminal
history category was VI. Ultimately, the applicable guideline
range was 262 to 327 months. Wright received a downward
variance and was sentenced to serve 132 months in prison, to
be followed by a five-year term of supervised release.
Sentencing Tr. (Doc. 45) at 49:1-7; Judgment (Doc. 40) at
did not appeal. His conviction became final on November 18,
2011. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
U.S.C. § 924(e)
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
(2015) (?Johnson" or "Johnson
ZF'), the Court considered the meaning of a provision in
the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e). The ACCA imposes a harsher sentence on a
person convicted of a firearms offense if the person has
three prior convictions for a violent felony or controlled
substance offense. The Act 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, 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). Johnson discussed
only the italicized clause, commonly called the
Supreme Court found the residual clause so vague that it
deprived defendants of fair notice of the consequences of
their decisions and so loose that it invited arbitrary
enforcement. Therefore, the decision held, federal sentencing
courts may no longer enhance a defendant's sentence based
on a prior conviction when that conviction qualifies as a
"violent felony" only under the residual clause.
See Johnson, 135 U.S. at 2555-60, 2563.
did not address either subsection (i) or the first line of
§ 924(e)(2)(B). Those provisions remain valid.
challenges his conviction not under the ACCA but under 18
U.S.C. § 924(c)(1)(A) and (iii) for using or carrying
and discharging a firearm during and in relation to a
"crime of violence." The definition of a
"crime of violence" in § 924(c)(3) is not
identical to the definition of a "violent felony"
in § 924(e)(2)(B), but it is similar:
(3) For purposes of this subsection [§ 924(c)] the term
"crime of violence" means an offense that is a
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3).
Court will assume, for the sake of argument, that the
residual clause in § 924(c)(3)(2?) is unconstitutionally
vague for the reasons explained in Johnson. See
Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015)
(holding the residual clause of 18 U.S.C. § 16(b), which
is virtually identical to § 924(c)(3)(B),
unconstitutionally vague under Johnson), cert,
granted, No. 15-1498 (U.S. Sept. 29,
2016). But, even so, Wright's conviction and
sentence under § 924(c) would still be valid if the
"crime of violence" he committed "ha[d] as an
element the use, attempted use, or threatened use of physical
force against the person or property of another."
18U.S.C. § 924(c)(3)(, 4).
following reasons, Wright's conviction and sentence