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United States v. Sam

United States District Court, D. Montana, Billings Division

November 28, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
CHUOI DICH SAM, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters, United States District Court Judge

         This matter comes before the Court on Defendant/Movant Sam's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Sam 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).

         I. Procedural Background

         On April 22, 2005, Sam was indicted in a seven-count indictment for violations of 18 U.S.C. §§1951, 924(c), 9220) and 922(g)(1). See Plea Agreement (Doc. 33) at 1-2 ¶ 1.

         Sam agreed to plead guilty to Counts 1, 2, and 3. Count 1 charged Sam with conspiring to obstruct or to attempt to obstruct interstate commerce by robbery of two casinos in violation of 18 U.S.C. § 1951. Count 2 charged him with "unlawfully tak[ing] and obtain[ing] personal property" of the Winner's Circle casino "against its will by means of actual and threatened force, violence and fear of injury, immediate and future, " to business property. Count 3 charged Sam with using or carrying a firearm during and in relation to a crime of violence, "to wit, a violation of 18 U.S.C. § 1951 as charged in Count II" of the indictment. See Id. at 2-3 ¶ 6A-C.

         The plea agreement recited the following elements:

         Conspiracy to Violate the Hobbs Act 18 U.S.C. § 1951

First, beginning on or about July 31, 2004, and ending on or about August 1, 2004, there was an agreement between two or more persons to commit robbery;
Second, the defendant became a member of the conspiracy knowing of at least one of its objects and intending to help accomplish it.

         Hobbs Act 18 U.S.C. § 1951

First, that defendant induced persons at the Winner's Circle to part with property;
Second, that defendant did so knowingly and deliberately by robbery; and
Third, that in doing so, interstate commerce was obstructed, delayed or otherwise affected.

         Use of Firearm During a Crime of Violence, 18 U.S.C. § 924(c)

First, the defendant committed the crime of interference with commerce by threats or violence as charged in Count II of the indictment;
Second, the defendant knowingly used a firearm; and
Third, the defendant knowingly used a firearm during and in relation to the crime.

Plea Agreement (Doc. 33) at 4-5 ¶ 8; see also Offer of Proof (Doc. 50) at 2-3.

         In exchange for Sam's guilty pleas to Counts 1, 2, and 3, the United States agreed to dismiss Counts 4, 5, 8, and 9. Id. at 2 ¶ 5. (Sam was not charged in Counts 6 and 7.) Sam pled guilty. See Minutes (Doc. 46).

         On March 8, 2006, Sam was sentenced to serve 137 months on Counts 1 and 2, concurrently, and a consecutive seven-year term on Count 3, for a total prison term of 221 months. See Minutes (Doc. 58); Judgment (Doc. 59) at 2.

         Sam appealed a sentencing guideline issue. See United States v. Sam, No. 06-30186 (9th Cir. Apr. 18, 2007). His conviction became final on July 17, 2007. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         Sam now seeks relief under the United States Supreme Court's recent decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). See also Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016) (holding that Johnson applies to cases already final when it was issued).

         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 II"), the Supreme Court considered once again 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 ...

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