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United States v. Lettiere

United States District Court, D. Montana, Missoula Division

July 13, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JEREMIAH LETTIERE, Defendant/Movant.

          ORDER

          DONALD W. MOLLOY, DISTRICT JUDGE UNITED STATES DISTRICT COURT

         This case comes before the Court on Defendant Lettiere's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Lettiere is a federal prisoner proceeding with counsel.

         Lettiere seeks relief under the Supreme Court's recent decision in Johnson v. United States, ___U.S. ___, 135 S.Ct. 2551 (2015).

         I. Procedural Background

         A. Proceedings in the Criminal Case

         On October 7, 2009, a grand jury indicted Lettiere, along with two co-defendants, on one count of committing a Hobbs Act robbery, a violation of 18 U.S.C. § 1951(a) (Count 1), and one count of using and brandishing a firearm during a crime of violence, a violation of 18 U.S.C. § 924(c) (Count 2). See Indictment (Doc. 22) at 2-3. Following a jury trial, Lettiere was convicted on both counts. See Verdict (Doc. 93) at 1. On April 9, 2010, Lettiere was sentenced to serve 51 months on Count 1 and 84 months on Count 2, consecutive, to be followed by a five-year term of supervised release. See Minutes (Doc. 113); Judgment (Doc. 117) at 2-3; 18 U.S.C. § 924(c)(1)(A)(ii), (D)(ii).

         Lettiere appealed, but his conviction was affirmed. United States v. Lettiere, 640 F.3d 1271, 1276 (9th Cir. 2011). His conviction became final ninety days later, on August 21, 2011. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         B. Collateral Proceedings

         On July 23, 2012, Lettiere filed a motion under 28 U.S.C. § 2255. The motion and a certificate of appealability were denied on December 4, 2012. See Mot. § 2255 (Doc. 136); Order (Doc. 144).

         On December 27, 2016, the Court of Appeals granted Lettiere 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); see also id § 2255(h).

         Section 2255(h)(2) allows a second or successive motion that meets three criteria: the motion must "contain ... a new rule of constitutional law"; the new rule must be "made retroactive to cases on collateral review by the Supreme Court"; and, the new rule must have been "previously unavailable."

         Johnson is a new rule of constitutional law. It holds the enterprise of deciding whether a specific offense meets the requirements of a specific statutory clause, see 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, so that "[i]ncreasing a defendant's sentence under the clause denies due process of law." Johnson, 135 S.Ct. at 2557. In Welch v. United States, ___U.S. ___, 136 S.Ct. 1257, 1264-65 (2016), the Supreme Court made Johnson retroactively applicable to cases on collateral review. And the rule announced in Johnson was previously unavailable. Not only was there no legal authority holding the clause unconstitutionally vague before Johnson, but the Supreme Court had twice held the clause was not unconstitutionally vague. Lettiere meets the requirements of 28 U.S.C. § 2255(h)(2) and is entitled to proceed with his second § 2255 motion.

         II. Merits

         The jury convicted Lettiere of using a firearm as a weapon in committing a crime. But because of the way the phrase "crime of violence" is interpreted in the Ninth Circuit and in Sessions v. Dimaya, ___U.S. ___, 138 S.Ct. 1204 (2018), the jury's verdict does not necessarily mean Lettiere is guilty of using or carrying a firearm during and in relation to a "crime of violence" as the phrase is defined in 18 U.S.C. § 924(c).

         A. "Crime of Violence"

         Congress does not penalize everyone who uses a firearm to commit a crime. It penalizes:

any person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm[.]

18 U.S.C. § 924(c)(1)(A). Congress requires penalizing only those who use a firearm to commit certain kinds of crimes: federal drug trafficking crimes and federal crimes of violence. The United States claimed Lettiere used or carried a firearm in connection with a "crime of violence." Congress defines the term:

         For purposes of this subsection [§ 924(c)] the term "crime of violence" means an offense ...


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