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United States v. Wright

United States District Court, D. Montana, Missoula Division

July 31, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JOSEPH BERNARD WRIGHT, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Donald W. Molloy Judge

         This 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.

         Wright 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.

         I. Procedural Background

         On 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, [1] the United States dismissed Count 1. Plea Agreement (Doc. 20) at 2-3 ¶ 3.

         Wright's 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 2-3.

         Wright did not appeal. His conviction became final on November 18, 2011. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         II. Legal Background

         A. 18 U.S.C. § 924(e)

         In 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 "residual" clause.

         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.

         Johnson did not address either subsection (i) or the first line of subsection

         (ii) in § 924(e)(2)(B). Those provisions remain valid.

         B. 18 U.S.C.§ 924(c)(3)

         Wright 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 felony and-
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(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).

         The 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).[2] 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).

         For the following reasons, Wright's conviction and sentence ...


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