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granting the defendant's § 2255 challenge to his sentence computation that was based on the advisory guidelines and ordering the court to resentence the defendant
Summary of this case from Alvarez-Herrera v. United StatesOpinion
Case No. CV 16-4411-GW Case No. CR 09-939-GW-61
10-14-2016
David Alvarado v. United States of America
CIVIL MINUTES—GENERAL Present: The Honorable GEORGE H. WU , UNITED STATES DISTRICT JUDGE Javier Gonzalez
Deputy Clerk None Present
Court Reporter Attorneys Present for Plaintiff(s) None Present Attorneys Present for Defendant(s) None Present Proceedings: (IN CHAMBERS) - RULING ON PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, PURSUANT TO TITLE 28 USC § 2255
I. Background
In 2009, David Alvarado ("Petitioner") was charged in five counts of a 78-count Indictment against multiple defendants. See Mot. to Vacate ("Mot.") Ex. A, Docket No. 1-1. On August 8, 2012, Petitioner pled guilty pursuant to a written plea agreement to Count 1 of the Indictment, which charged Petitioner with conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d). See id. Ex. B, Docket No. 1-1 at pages 202-203. The remaining counts were dismissed. Id.
Unless otherwise indicated, all docket references are to the civil docket in CV-16-4411-GW. The Court refers to documents lodged in the criminal docket, CR-09-0939-GW-61, as "CR Docket No."
In the factual basis of the plea agreement, Petitioner admitted that he was a member of the Avenues street gang, "an enterprise whose members engage in violent crimes and narcotics distribution," and that as part of his membership in the gang, Petitioner "agreed with others to conduct and participate in the offenses of the gang as part of a pattern of racketeering activity." Id. ¶ 9. The plea agreement described various violent attacks committed by Petitioner as part of his role in the gang, as well as his possession of a firearm. Id.
The Presentence Report ("PSR") concluded that Petitioner was a career offender under U.S.S.G. § 4B1.1 because "the instant offense is a crime of violence," and because Petitioner had two prior adult felony convictions that qualified as crimes of violence. See PSR ¶¶ 136, 150, 154, CR Docket No. 3213. The career offender determination increased Petitioner's criminal history category from IV to VI; his base offense level from 27 to 32; and his overall offense level from 24 to 29. Id. ¶¶ 134, 138, 163-64. As a result, Petitioner's guideline range was increased from 77-96 months to 151-188 months. Id. ¶ 212.
Now pending before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. See Mot. to Vacate ("Mot."), Docket No. 1. The United States has opposed the Motion, see Opp'n to Mot. ("Opp'n"), Docket No. 15, to which Petitioner has replied. See Reply, Docket No. 18.
II. Legal Standard
Under 28 U.S.C. § 2255:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.See 28 U.S.C. § 2255. To obtain relief under Section 2255, "a prisoner must clear a significantly higher hurdle than would exist on direct appeal." See United States v. Frady, 456 U.S. 152, 166 (1982). "If a petitioner does not allege lack of jurisdiction or constitutional error, an error of law will not provide a basis for habeas relief unless that error resulted in a complete miscarriage of justice or in a proceeding inconsistent with the rudimentary demands of fair procedure." Hamilton v. United States, 67 F.3d 761, 763-64 (9th Cir. 1995).
III. Analysis
Petitioner contends that he is entitled to be resentenced because, under the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2251 (2015), he is now serving an illegal and unconstitutional career offender sentence. See Mot. at 3:7-11. Petitioner argues that, following Johnson, his two prior robbery convictions and the instant RICO conspiracy conviction do not qualify as "crime[s] of violence" under the Career Offender Guideline. Id.
The United States contends that Petitioner's claim is barred because it is procedurally defaulted and untimely. See Opp'n at 3:11-16. In addition, the United States argues that Petitioner's claim fails on the merits, because robbery and RICO conspiracy are crimes of violence that are not affected by the holding in Johnson. Id.
A. Johnson v. United States
In Johnson, the Supreme Court held that the residual clause in the definition of a "violent felony" under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. See generally Johnson, 135 S.Ct. 2551. The ACCA residual clause defined a violent felony as "any crime punishable by imprisonment exceeding one year . . . [t]hat is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." See 18 U.S.C. § 924(e)(2)(B)(ii). The Court explained that the ACCA requires courts to use a categorical approach when deciding whether an offense "otherwise presents a serious potential risk of physical injury to another," which requires a court to assess "whether a crime qualifies as a violent felony in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion." See Johnson, 135 S.Ct. at 2257 (internal quotations and citations omitted). However, the Johnson Court held that this approach left "grave uncertainty about how to estimate the risk posed by a crime . . . . [The clause] ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." Id.
In addition, the Court reasoned that:
the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony. It is one thing to apply an imprecise "serious potential risk" standard to real-world facts; it is quite another to apply it to a judge-imagined abstraction. By asking whether the crime "otherwise involves conduct that presents a serious potential risk," moreover, the residual clause forces courts to interpret "serious potential risk" in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives. These offenses are "far from clear in respect to the degree of risk each poses."Id. at 2258 (emphasis in original) (citations omitted). The Court therefore held that the "indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law." Id. at 2557.
B. Whether Petitioner's Claim is Procedurally Defaulted
First, the United States contends that Petitioner's claim is procedurally defaulted because he failed to raise it on direct appeal. See Opp'n at 3:18-20.
"Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised [] only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotation marks and citations omitted).
1. Petitioner has Established Cause
The Supreme Court has held that the cause prong is satisfied where a claim is "novel" - meaning that, at the time of the direct appeal, "there was no reasonable basis in existing law" for raising the claim. See Reed v. Ross, 468 U.S. 1, 15 (1984). In Reed, the Court articulated three situations in which a claim could be novel: (1) where a Supreme Court decision "explicitly overrule[s] one of [the Court's] precedents"; (2) where a Supreme Court decision "may overturn a longstanding and widespread practice to which [the Court] has not spoken, but which a near- unanimous body of lower court authority has expressly approved"; and (3) where a Supreme Court decision "disapprove[s] a practice [the Court] arguably has sanctioned in prior cases." Id. at 17 (internal quotation marks and citations omitted).
The United States contends that Petitioner's claim is not "novel" because "[a]t the time of [P]etitioner's sentencing, arguments challenging the ACCA's identically worded residual clause as unconstitutionally vague were not novel," and had been raised in numerous cases. See Opp'n at 4:24-28. In addition, the United States argues that "challenges to whether various prior convictions constituted crimes of violence were common" at the time of Petitioner's sentencing. Id. at 5:4-11.
However, the Court would agree with Petitioner that his claim satisfies the first Reed situation, because Johnson expressly overruled Supreme Court precedent. See Johnson, 135 S.Ct. at 2563 ("We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings in James [v. United States, 550 U.S. 192 (2007)] and Sykes [v. United States, 131 S.Ct. 2267 (2011)] are overruled."). Indeed, at the time of Petitioner's sentencing, his instant claim was directly foreclosed by James and Sykes, which held that similar residual clauses defining crimes of violence were not overly broad. Moreover, in the wake of Johnson, courts in the Ninth Circuit have held that a § 2255 motion based on a Johnson claim is not procedurally defaulted because the claim was not "reasonably available" prior to Johnson. See United States v. Garcia, ___ F.Supp.3d ___, 2016 WL 4364439, *3 (N.D. Cal. Aug. 16, 2016); McGary, 2016 WL 4126451, at *3.
The United States relies on Bousley v. United States, 523 U.S. 614, 623 (1998), to argue that the mere fact that previous vagueness challenges to residual clauses were unsuccessful does not excuse Petitioner's failure to pursue a similar challenge. See Opp'n at 5:5-11. In Bousley, the petitioner argued that it would have been futile to raise his § 2255 claim prior to the Supreme Court's decision in Bailey v. United States, 516 U.S. 137, 144 (1995), which provided the basis for his claim. See Bousley, 523 U.S. at 623. The Court held that the claim was not "novel," because "futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time." Id. (citations omitted). However, the Court's decision in Bailey did not expressly overturn any of its past decisions; as such, the Court finds Bousley to be distinguishable in the context of a Johnson claim.
2. Petitioner has Established Prejudice
"If a petitioner succeeds in showing cause, the prejudice prong of the test requires demonstrating 'not merely that the errors . . . [in the proceedings] created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceedings] with error of constitutional dimensions.'" United States v. Braswell, 501 F.3d 1147, 150 (9th Cir. 2007) (citing United States v. Frady, 456 U.S. 152, 170 (1982)) (emphasis in original).
The United States argues that Petitioner cannot establish the prejudice prong, because he was sentenced well below the statutory maximum of 20 years' imprisonment. See Opp'n at 5:12-23. However, courts in the Ninth Circuit have rejected this argument when faced with identical Johnson claims, finding that, without the petitioner's career offender designation, his base offense level would have been lower, resulting in a lower sentencing range and ultimately, a lower sentence, thus establishing prejudice. See United States v. Dean, ___ F.Supp.3d ___, 2016 WL 1060229, *8-10 (D. Or. Mar. 15, 2016) (holding that there had been a constitutional error in the calculation of the petitioner's advisory sentencing range based on the unconstitutionally vague residual clause in the Career Offender Guideline); see also United States v. Gentry, ___ F.Supp.3d ___, 2016 WL 3647331, *3 (D. Or. July 7, 2016) (same); United States v. Stamps, No. CR 13-238 CW, 2016 WL 3747286, *4 (N.D. Cal. June 29, 2016) (explaining that the court had considered the Career Offender Guideline in imposing the petitioner's sentence and, even though a lower sentence than the statutory maximum was imposed, it was still well above the non-Career Offender Guidelines range and thus there had been a constitutional error that worked to the petitioner's actual and substantive disadvantage).
Petitioner contends that, at the time of his sentencing, his non-career offender range was 77-96 months. See Reply at 10:20-23. Because the Court imposed a sentence of 151 months, the Court would find that, although Petitioner's sentence was below the statutory maximum, Petitioner has established prejudice.
For these reasons, the Court would find that Petitioner's claim is not procedurally defaulted.
C. Whether Petitioner's Motion is Untimely
Although Section 2255 imposes a one-year statute of limitations period, that period runs from "the latest of (1) the date on which the judgment of conviction becomes final; . . . [or] (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." See 28 U.S.C. § 2255.
The United States argues that Petitioner's claim is untimely because Johnson, as it relates to the Career Offender Guideline, has not been made retroactively applicable to cases on collateral review. See Mot. at 6:2-15:12.
"Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." See Teague v. Lane, 489 U.S. 288, 310 (1989). "The threshold questions for Teague application are whether the articulated rule is (1) a new constitutional rule and (2) procedural or substantive." See Reina-Rodriguez v. United States, 655 F.3d 1182, 1188 (9th Cir. 2011) (citing Beard v. Banks, 542 U.S. 406, 411 (2004)). In addition, Teague "does not apply to 'watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.'" Id. (citing Teague, 489 U.S. at 417).
Here, the parties dispute whether Johnson, as applied to the Career Offender Guideline, is a procedural or substantive rule, because Teague only applies to procedural rules. Id. "'For Teague purposes, a new rule is one of 'procedure' if it affects the operation of the criminal trial process, and a new rule is one of 'substance' if it alters the scope or modifies the applicability of a substantive criminal statute.'" Id. at 1189 (quoting Hayes v. Brown, 399 F.3d 972, 982 (9th Cir. 2005)); see also Welch v. United States, 136 S.Ct. 1257, 1265 (2016) ("Procedural rules . . . regulate only the manner of determining the defendant's culpability." (emphasis in original) (citations omitted)). "Substantive rules 'include decisions that narrow the scope of a criminal statute by interpreting its terms.'" Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351 (2004)).
In Welch, the Supreme Court held that Johnson announced a substantive rule that has retroactive effect in cases on collateral review, because Johnson:
had nothing to do with the range of permissible methods a court might use to determine whether a defendant should be sentenced under the Armed Career Criminal Act. It did not, for example, allocate decisionmaking authority between judge and jury, or regulate the evidence that the court could consider in making its decision. Unlike those cases, Johnson affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied.Welch, 136 S.Ct. at 1265 (internal quotation marks and citations omitted). The Court emphasized that, "[b]y striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the Armed Career Criminal Act, altering the 'range of conduct or the class of persons that the [Act] punishes.'" Id. (citing Schriro, 542 U.S. at 353).
The United States argues that Johnson does not apply retroactively to claims based on the Sentencing Guidelines and raised on collateral review, because the application of Johnson to the Guidelines only results in procedural changes. See Mot. at 10:11-12:8. In support, the United States asserts that "sentencing a defendant in light of an erroneous application of § 4B1.1 does not alter the statutory boundaries for sentencing set by Congress for the crime. A rule invalidating the crime-of-violence residual clause in the Career Offender Guideline would establish that a defendant's Guidelines range was incorrectly calculated, but it would not disturb the statutory boundaries for sentencing." Id. at 11:11-17. The United States further points out that the a Guidelines provision cannot mandate or authorize any sentence, unlike the ACCA, and therefore, a Johnson error in this context relates only to the manner of determining the defendant's sentence, which is procedural. Id. at 11:18-12:3.
However, the United States' position is contradicted by the Ninth Circuit's holding in Reina-Rodriguez. See 655 F.3d 1182. There, the Ninth Circuit held that the retroactivity of the Supreme Court's decision in United States v. Grisel, 488 F.3d 844 (9th Cir. 2007), which limited the definition of "burglary" under the ACCA, was also a substantive, retroactive rule in the context of the Sentencing Guidelines. Id. at 1193. The Ninth Circuit emphasized that the Grisel decision not only "altered the permissible methods for determining whether a sentencing enhancement can be imposed on account of a state burglary conviction," but also "altered the conduct that substantively qualifies as a burglary under the categorical approach." Id. at 1189.
Indeed, in the wake of Johnson, courts in the Ninth Circuit have followed the reasoning of Reina-Rodriguez to find that Johnson also applies retroactively to the Sentencing Guidelines. See Dean, 2016 WL 1060229, at *16. In Dean, the court held that Johnson applies retroactively to the Career Offender Guideline, emphasizing that the petitioner's prior conviction "no longer constitutes a 'crime of violence' for purposes of the Guidelines' residual clause. Johnson substantively changes the conduct by which federal courts may enhance the sentence of a defendant under the Guidelines. Thus, Johnson does not regulate only the 'manner of determining the defendant's culpability' like a procedural rule would." Id. (citing Schriro, 542 U.S. at 353) (emphasis in original).
Whether Johnson applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause of the Career Offender Guideline is currently before the Supreme Court. See United States v. Beckles, 565 F.3d 832 (11th Cir. 2009), cert. granted, Beckles v. United States, 136 S.Ct. 2510 (June 27, 2016). However, the Court would not stay its decision on Petitioner's Motion because, until the Supreme Court rules on these issues, the Court must follow the Ninth Circuit's precedent in Reina-Rodriguez. See Yong v. INS, 208 F.3d 1116, 1119-21 & n.2 (9th Cir. 2000) (holding that district courts should not impose indefinite stays in habeas cases pending Supreme Court decisions, and explaining that "[o]nce a federal circuit court issues a decision, the district courts within that circuit are bound to follow it and have no authority to await a ruling by the Supreme Court before applying the circuit court's decision as binding authority"); see also Milot v. Haws, 628 F.Supp.2d 1152, 1158 (C.D. Cal. 2009) (interpreting Yong and declining to grant stay in habeas proceeding pending a decision by the Supreme Court); Order Denying Government's Motion to Dismiss in Robinson v. United States, Case No. 16-4513-SJO, Docket No. 24, *10 (C.D. Cal. Sept. 6, 2016) (holding that Petitioner's § 2255 motion challenging sentencing enhancement under residual clause of Career Offender Guideline was not time-barred under the Ninth Circuit's precedent in Reina-Rodriguez and declining to stay decision until the Supreme Court's ruling in Beckles).
The United States previously moved for a stay pending the Supreme Court's decision in Beckles. See Docket No. 5. The Court denied the motion "without prejudice, to be renewed following briefing." See Docket No. 8. The United States has not renewed its motion, however, as indicated supra, the Court does not believe a stay is warranted at this time.
For these reasons, the Court would find that Petitioner's claim is not untimely.
D. Whether Robbery and RICO Conspiracy Are Crimes of Violence after Johnson
Petitioner contends that he is serving an illegal career offender sentence, because he is no longer a career offender under Johnson. See Mot. at 3:7-11. Petitioner argues that his two prior felony convictions for robbery and his instant conviction for RICO conspiracy are no longer crimes of violence under the Career Offender Guideline. Id.
The United States concedes that Johnson invalidated the residual clause of the Career Offender Guideline, which is identically worded to the ACCA's residual clause. See Opp'n at 10 n.4, 24:26-25:6.
Petitioner was designated a career offender under USSG § 4B1.1, which provides that:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.See U.S.S.G. § 4B1.1 (2011) (amended 2016).
This reflects the version of the Sentencing Guidelines at the time Petitioner was sentenced. The Court notes that, in 2016, this section was amended and the residual clause in § 4B1.2(a)(2) was removed.
USSG § 4B1.2(a) further provides that:
The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
See id. § 4B1.2(a) (2011).(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
The Court refers to § 4B1.1(a)(1) as the "force clause." The Court refers to the first portion of § 4B1.1(a)(2), which specifies that "burglary of a dwelling, arson, or extortion, [or an offense that] involves use of explosives" are crimes of violence, as the "enumerated offenses clause." The Court refers to the second portion of § 4B1.1(a)(2), which classifies as a crime of violence an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another," as the "residual clause." This reflects the terminology used by the parties and is appropriate because the Supreme Court made clear in Johnson that only the language "otherwise presents a serious potential risk of physical injury to another" is unconstitutionally vague. See Johnson, 135 S.Ct. at 2257.
1. Robbery Remains a Crime of Violence after Johnson
Both of Petitioner's prior felonies were convictions for second degree robbery under California Penal Code § 211; the PSR determined that Penal Code § 211 is a crime of violence under both § 4B1.2(a)(1) and § 4B1.2(a)(2). See PSR ¶¶ 136, 150, 154. California Penal Code § 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." See Cal. Penal Code § 211.
Petitioner argues that Penal Code § 211 is no longer a crime of violence because it was only previously deemed a crime of violence under the residual clause. See Mot. at 4:10-6:5. Petitioner contends that robbery cannot be a crime of violence under the enumerated offenses clause because robbery is not specifically listed in the text of § 4B1.2(a)(2). Id. at 6:7-7:5.
However, while robbery is not listed in the text of § 4B1.2(a)(2), the commentary to § 4B1.2 includes Application Note 1, which provides several additional enumerated offenses, including robbery. See U.S.S.G. § 4B1.2 app. n.1 (2011) (amended 2016). Application Note 1 provides, in relevant part, the following:
"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive devise) or, by its nature, presented a serious potential risk of physical injury to another.Id.
With respect to the authoritative value of commentary to the Sentencing Guidelines, the Supreme Court has explained that "[t]he Sentencing Commission has provided in a guideline that commentary may serve these functions: commentary may 'interpret [a] guideline or explain how it is to be applied,' 'suggest circumstances which . . . may warrant departure from the guidelines,' 'or provide background information, including factors considered in promulgating the guideline or reasons underlying promulgation of the guideline.'" See Stinson v. United States, 508 U.S. 36, 41 (1996) (quoting U.S.S.G § 1B1.7). In Stinson, the Supreme Court held that commentary "which functions to interpret a guideline or explain how it is to be applied" is binding. Id. at 42-43 (internal quotation marks and citations omitted). However, the Court noted that where "commentary and the guideline it interprets are inconsistent in that following one will result in violating the dictates of the other, the Sentencing Reform itself commands compliance with the guideline." Id. at 43 (citing 18 U.S.C. §§ 3553(a)(4), (b)).
Petitioner argues that, because the residual clause in § 4B1.2(a)(2) is now unconstitutionally vague, Application Note 1 is no longer authoritative, because "the offenses enumerated in the commentary could only have been interpreting the residual clause." See Mot. at 9:8-22.
In response, Defendant points out that the Ninth Circuit has previously relied on enumerated offenses in guidelines commentary to hold that Penal Code § 211 is categorically a crime of violence, without relying on the residual clause. See Opp'n at 17:7-19:2. For example, in United States v. Becerril-Lopez, 541 F.3d 881, 892-93 (9th Cir. 2008), the Ninth Circuit held that § 211 is a crime of violence for purposes of USSG § 2L1.2. While § 2L1.2 does not include enumerated offenses in the text of the guideline itself, the commentary provides a list of specific offenses that qualify as crimes of violence, including robbery and extortion. See U.S.S.G. § 2L1.2 app. n.1(B)(iii). In Becerril-Lopez, the defendant argued that Penal Code § 211 includes conduct that is broader than the generic offense of robbery listed in the commentary, and thus cannot categorically be a crime of violence. See Becerril-Lopez, 541 F.3d at 891-921. Although the Ninth Circuit agreed that Penal Code § 211 includes a broader range of threats than the generic offense of robbery, such as threats to property, the court held that the broader range of threats not covered by generic robbery falls within the offense of generic extortion, which is also listed as a crime of violence in § 2L1.2's commentary. See Becerril-Lopez, 541 F.3d at 891-92. The Ninth Circuit thus held that Penal Code § 211 is categorically a crime of violence for purposes of § 2L1.2 because it falls within the enumerated offenses in the commentary to § 2L1.2. Id.; see also United States v. Harris, 572 F.3d 1065, 1066 (9th Cir. 2009) (holding that, pursuant to reasoning of Becerril-Lopez, a conviction under Nevada's robbery statute, which is similar to California Penal Code § 211, is a crime of violence under the Career Offender Guideline).
The Ninth Circuit recently addressed whether, in the wake of Johnson, § 211 remains a crime of violence under USSG § 2K2.1. See United States v. Tate, ___ Fed.Appx. ___, 2016 WL 4191909, *2 (9th Cir. 2016). Under § 2K2.1, a defendant convicted of being a felon in possession of a firearm is subject to a higher base offense level if he has a prior felony conviction for a crime of violence. See U.S.S.G. §2K2.1(a)(4)(A). In Tate, the Ninth Circuit explained that Section 2K2.1 does not include a definition of "crime of violence," but rather states that "the phrase 'has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.' Application Note 1 of § 4B1.2 states that robbery and extortion are both crimes of violence." Tate, ___ Fed.Appx. ___, 2016 WL 4191909, at *1 (citing U.S.S.G. § 2K2.1 app. n.1; U.S.S.G. § 4B1.2(a)(2) & app. n.1). The Court further explained that:
In [Becerril-Lopez], this Court determined that . . . a defendant who commits robbery under § 211 necessarily commits either generic robbery or generic extortion, and thus categorically commits a 'crime of violence.' This holding is undisturbed by Johnson, which held that the residual clause defining 'violent felony' in the Armed Career Criminal Act was void for vagueness. Becerril-Lopez controls here: [defendant], who committed robbery under § 211, necessarily committed either generic robbery or generic extortion, which are both listed as crimes of violence in §§ 4B1.2(A)(2) and 4B1.2's Application Note 1. Thus, [defendant] categorically committed a crime of violence.Id. at *1-2 (citations omitted) (emphasis in original); see also United States v. Jeffries, 822 F.3d 192, 193-94 (5th Cir. 2016) (holding that Johnson did not affect the petitioner's career offender designation where prior convictions were enumerated crimes of violence under Application Note 1, thus establishing that petitioner had not been sentenced under the residual clause).
Moreover, as the United States points out, the structure of Application Note 1 indicates that the enumerated offenses interpret the term "crime of violence" itself, rather than the residual clause. See Opp'n at 19:23-20:3. Application Note 1 first enumerates the list of offenses that constitute crimes of violence, including robbery, and then explains that "[o]ther offenses are included as 'crimes of violence' if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e, expressly charged) in the count of which the defendant was convicted involved use of explosives . . . or, by its nature, presented a serious potential risk of physical injury to another." See U.S.S.G. § 4B1.2 app. n.1 (2011) (amended 2016). Indeed, the language of clauses (A) and (B) in Application Note 1 tracks the language of the force and residual clauses.
In addition, the 2016 Amendments to the Guidelines confirm that the inclusion of robbery as a crime of violence was not based on the residual clause. The Amendment to the Career Offender Guideline struck the residual clause in § 4B1.2(a)(2), explaining that "[t]he [Sentencing] Commission determined that the residual clause at § 4B1.2 implicates many of the same concerns cited by the Supreme Court in Johnson . . . . Removing the residual clause has the advantage of alleviating the considerable application difficulties associated with that clause . . . . [and] will alleviate some of the ongoing litigation and uncertainty resulting from the Johnson decision." See U.S.S.G. § 4B1.2(a), Historical Notes, 2016 Amendments. The Amendment moved the enumerated offenses in Application Note 1, including robbery, to the text of the Guideline itself, explaining that:
As amended, the enumerated offenses include murder, voluntary
manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, or the use of unlawful possession of a firearm . . . . For easier application, all enumerated offenses are now included in the guideline at § 4B1.2; prior to the amendment, the list was set forth in both § 4B1.2(a)(2) and the commentary at Application Note 1.See id.
Petitioner relies on the First Circuit's recent decision in United States v. Soto-Rivera, 811 F.3d 53, 60 (1st Cir. 2016), in which the First Circuit held that the enumerated offenses in Application Note 1 were inconsistent with the Career Offender Guideline's text after the residual clause was excised, and thus, the petitioner's designation as a career offender for passive possession of a firearm was no longer valid. See Soto-Rivera, 811 F.3d at 59-61. The First Circuit appears to have reasoned that the enumerated offenses were included in Note 1 because these offenses fell within the residual clause's catchall provision for crimes involving a "serious potential risk of physical injury to another." See id. However, this Court finds that the Ninth Circuit's decisions in Becerril-Lopez and Tate, as well as the structure of Application Note 1 and the 2016 Amendment, are more persuasive in the instant case.
For these reasons, the Court would find that robbery is a crime of violence under the enumerated offenses in § 4B1.2(a)(2) and Application Note 1, which are not affected by Johnson.
Because the Court should determine that robbery remains a crime of violence under § 4B1.2(a)(2) and Application Note 1, it need not address the parties' separate arguments regarding whether robbery is a crime of violence under the force clause. --------
2. RICO Conspiracy is Not a Crime of Violence under the Force Clause
Petitioner also argues that a conviction for RICO conspiracy is no longer a crime of violence under Johnson, because it was only ever deemed a crime of violence under the residual clause. See Mot. at 12:6-12.
Although the PSR does not specify whether Petitioner's RICO conspiracy conviction qualified as a "crime of violence" under the force clause or the residual clause, prior to Johnson, the Ninth Circuit routinely held that a RICO conspiracy to commit a violent crime falls within the residual clause of Section 924(c), because a conspiracy to commit a violent crime "by its nature, involves a substantial risk that physical force . . . may be used in the course of committing the offense." See, e.g., United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (holding that a RICO conspiracy to commit Hobbs Act robbery fell within residual clause of Section 924(c) and specifically declining to address whether it could also qualify as a crime of violence under the force clause); see also United States v. Juvenile Male, 118 F.3d 1344, 1350 (9th Cir. 1997) (same).
However, the United States contends that RICO conspiracy is a crime of violence under the force clause when a defendant enters a conspiracy to commit offenses that are themselves crimes of violence. See Opp'n at 24:26-25:6. The United States cites no authority in support of its contention; moreover, in applying the categorical approach, the Court does not find this contention to have merit.
The force clause provides that an offense is a crime of violence where it "has as an element the use, attempted use, or threatened use of physical force against the person of another." See U.S.S.G. § 4B1.2(a)(1). To determine whether an offense is a crime of violence, courts must "apply the 'categorical approach' and 'modified categorical approach' set forth in Taylor v. United States, 495 U.S. 575 (1990)." United States v. Simmons, 782 F.3d 510, 513 (9th Cir. 2015) (quoting United States v. Lee, 704 F.3d 785, 788 (9th Cir. 2012). Under Taylor, courts must look "only to the statutory definitions of the [] offenses, and not []the particular facts underlying those convictions" to determine whether the conduct criminalized by the statute qualifies as a crime of violence. See Taylor, 495 U.S. at 600; see also United States v. Innie, 7 F.3d 840, 849-50 (9th Cir. 1993) ("This court has defined 'an element of a crime' as a 'constituent part' of the offense which must be proved by the prosecution in every case to sustain a conviction under a given statute." (quoting United States v. Sherbondy, 865 F.2d 996, 1010 (9th Cir. 1988) (emphasis in original)).
Under the categorical approach, a court must assess "whether the 'full range of conduct covered by [the statute] falls within the meaning of that term.'" United States v. Grajeda, 581 F.3d 1186, 1189 (9th Cir. 2009) (quoting United States v. Juvenile Female, 566 F.3d 943, 946 (9th Cir. 2009)). Under this approach, violation of a statute is not categorically a crime of violence if some conduct punishable under the statute would constitute a crime of violence, but some conduct would not. Id.; see also Descamps v. United States, 135 S.Ct. 2276, 2285-86 (2013).
"[T]he modified approach serves a limited function: it helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." Descamps, 135 S.Ct. at 2285. In those situations, a court "may look beyond the statutory elements to the charging paper and jury instructions used in a case . . . to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction." Id. at 2284-85 (internal quotations and citations omitted).
To prove a substantive RICO offense, the government must prove "(1) the conduct (2) of an enterprise (3) through a pattern of racketeering activity." Salinas v. United States, 522 U.S. 52, 62 (1997). A "pattern of racketeering activity" requires "at least two acts of 'racketeering activity,'" which includes "murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical . . .," among other offenses. See 18 U.S.C. § 1961(A)-(B), (5).
However, to prove a RICO conspiracy, the government must only prove that a conspirator intended to "further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense." See Salinas, 522 U.S. at 65. In Salinas, the Supreme Court made clear that "[t]here is no requirement of some overt act or specific act" in a RICO conspiracy case, and a defendant need not commit the underlying predicate acts of the substantive offense. Id. at 63-65. Indeed, the Court explained that:
it suffices that [the defendant] adopt the goal of furthering or facilitating the criminal endeavor. He may do so in any number of ways short of agreeing to undertake all of the acts necessary for the crime's completion. One can be a conspirator by agreeing to facilitate only some of the acts leading to the substantive offense. It is elementary that a conspiracy may exist and be punished whether or not the substantive crime ensues.Id. at 65 (citing Callanan v. United States, 364 U.S. 587, 594 (1961)).
Petitioner contends that RICO conspiracy is not a crime of violence under the force clause because "it does not have as an attempted element the use, attempted use, or threatened use of force, let alone the use, attempted use, or threatened use of physical force." See Mot. at 16:11-18. Rather, the RICO conspiracy statute only requires a showing that the defendant agreed to violate the RICO statute, regardless of whether the defendant or any other conspirator actually committed an overt act in furtherance of the conspiracy. Id.
The Court would find that the weight of authority supports finding that a RICO conspiracy is not a crime of violence under the force clause. Although, as discussed supra, the Ninth Circuit has not reached the issue of whether a RICO conspiracy constitutes a crime of violence under the force clause in the Career Offender Guideline, or any similarly worded statute, the Ninth Circuit has held that solicitation of rape and assault, which does not require that rape actually occur before a defendant can be guilty of solicitation, is not a crime of violence under a similarly worded force clause in 18 U.S.C. § 16(a). See Prakash v. Holder, 579 F.3d 1033, 1036 (9th Cir. 2009). In Praksash, the Ninth Circuit examined the relevant statute and held that "[b]ecause neither of the offenses [solicitation of rape and assault] for which [defendant] was convicted include as an element the actual 'use, attempted use, or threatened use of physical force against the person or property of another,' [defendant's] convictions do not constitute crimes of violence." Id. The Court then analyzed the offenses under § 16(a)'s residual clause and, because the case was brought prior to Johnson, held that the offenses constituted crimes of violence under that clause. Id. at 1039 (reasoning that the offenses "entail a substantial risk of physical force," and thus are crimes of violence under the residual clause).
Similarly, courts have held that a conspiracy to commit Hobbs Act robbery is not a crime of violence under similarly worded force clauses in the ACCA and 18 U.S.C. § 924(c), because none of the elements required to prove a Hobbs Act robbery conspiracy require the use, attempted use, or threatened use of force by a conspirator. See United States v. Baires-Reyes, ___ F.Supp.3d___, 2016 WL 3163049, *2 (N.D. Cal. June 7, 2016) (emphasizing that a Hobbs Act robbery conspiracy offense is complete when a "felonious agreement is reached"); United States v. Gore, 636 F.3d 728, 731 (5th Cir. 2011) (holding that conspiracy to commit aggravated robbery is not a violent crime because the state "could obtain a conviction of conspiracy without proving beyond a reasonable doubt that the defendant committed the crime that was the conspiracy's object"); United States v. White, 571 F.3d 365, 369 (4th Cir. 2009), abrogated on other grounds by Johnson v. United States, 135 S.Ct. 2551 (2015) ("Applying a categorical analysis to the Conspiracy Offense, we first observe that it does not have 'as an element the use, attempted use, or threatened use of physical force against the person of another' . . . . Thus, we must assess only one issue- the potential applicability of the 'residual provision'") (quoting 18 U.S.C. § 924(e)(2)(B)(i)); United States v. King, 979 F.2d 801, 802-03 (10th Cir. 1992) (holding that "the elements of the felonious object of the conspiracy are not subsumed within the elements of the conspiracy charge itself. Therefore, if a conspiracy to commit armed robbery is to be deemed a 'violent felony' . . . it must be on the basis of the elements of the conspiracy charge, not the underlying offense.").
The United States contends that adopting Petitioner's position "would have bizarre consequences." See Opp'n at 26:27-28. As an example, the United States contends that a person convicted of aiding and abetting a crime of violence could be liable as principal, pursuant to aiding and abetting liability, but would not have a predicate crime of violence conviction because the aiding and abetting conviction did not involve the use, attempted use, or threatened use of physical force. See Opp'n at 26:28-27:6. However, the Court would agree with Petitioner that a RICO conspiracy is distinguishable, because no underlying crime need actually occur for a defendant to be convicted; indeed, no overt act is required at all. See Salinas, 522 U.S. at 65.
In addition, the United States argues that the factual basis of Petitioner's plea agreement "describes specific facts to illustrate the conclusion that the RICO conspiracy . . . was in fact a crime of violence." See Opp'n at 27:15-20. However, under Taylor's categorical approach, courts may not look to "particular facts underlying" a conviction in determining whether an offense categorically is a crime of violence. See Taylor, 495 U.S. at 600.
For these reasons, the Court would find that a RICO conspiracy is not a crime of violence under the force clause of the Career Offender Guideline.
IV. Conclusion
In sum, the Court would find that Petitioner's conviction for RICO conspiracy is no longer a crime of violence under the Career Offender Guideline in the wake of Johnson, and therefore Petitioner is serving an illegal sentence and is entitled to be resentenced.