Opinion
Criminal Case No. 11-cr-1861 DMS Civil Case No. 16-cv-1388 DMS
11-21-2016
MARKUS AVERHART, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER DENYING (1) MOTION TO STAY AND (2) MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255
Pending before the Court is Petitioner Markus Averhart's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Petitioner moves to vacate his sentence pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016). Respondent United States of America opposes and also moves to stay proceedings pending a decision by the United States Court of Appeals for the Ninth Circuit in United States v. Begay, No. 14-10080. For the reasons set out below, the Court denies Respondent's motion to stay and Petitioner's motion to vacate. /// /// ///
I.
BACKGROUND
On July 2, 2012, Petitioner pleaded guilty to count one, conspiracy to commit robbery in violation of 18 U.S.C. §§ 7(3) and 2111, and count two, brandishing a firearm in furtherance of a crime in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2.
The probation department prepared a Presentence Report and calculated a guideline range of 46 to 57 months for count one. It also determined Petitioner was subject to a mandatory 60-month sentence for count two to be served consecutive to count one. At the sentencing hearing on January 1, 2013, the Court sentenced Petitioner to a total sentence of 106 months, consisting of 46 months as to count one and 60 months as to the count two.
On June 2, 2016, Petitioner filed the present motion, challenging his sentence in light of the recent Supreme Court decision in Johnson. Petitioner argues Johnson renders the residual clause in 18 U.S.C. § 924(c)(3) unconstitutional, and further argues Johnson applies retroactively on collateral review pursuant to Welch. Thus, Petitioner contends he is entitled to relief because his conviction for conspiracy to commit robbery no longer qualifies as a crime of violence under the residual clause in § 924(c)(3).
Respondent initially asserts this case should be stayed (1) to allow Petitioner time to explore whether defense counsel has a conflict of interest and (2) pending the Ninth Circuit's decision in Begay. In opposition to Petitioner's motion, Respondent argues Petitioner is not entitled to relief for the following reasons: (1) Petitioner waived his right to collaterally attack his sentence in his Plea Agreement, (2) Petitioner procedurally defaulted his claims by failing to raise it on direct appeal, (3) Johnson does not invalidate the residual clause in § 924(c)(3), and (4) Petitioner's conviction for conspiracy to commit robbery remains a crime of violence even if the residual clause in § 924(c)(3) is rendered unconstitutional under Johnson.
The Court declines to address Respondent's arguments on waiver and procedural default because, for the reasons stated in this Order, Petitioner's motion fails on the merits.
II.
DISCUSSION
A. Motion to Stay
Respondent offers two arguments in support of its motion to stay this case. First, it argues Petitioner should be provided with an opportunity to explore whether his counsel has a conflict of interest. Petitioner disputes there is a conflict, but signed a waiver in any case. Thus, the Court declines to issue a stay based on any alleged conflict of interest.
Respondent's second argument in support of its request for a stay is that the Ninth Circuit is likely to address whether Johnson invalidates the residual clause of 18 U.S.C. § 924(c)(3) in Begay. Although Begay certainly raises that issue, this Court finds a stay is inappropriate here. As stated in Yong v. I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000), "habeas proceedings implicate special considerations that place unique limits on a district court's authority to stay a case in the interests of judicial economy." In habeas cases, "[s]pecial solicitude is required because the writ is intended to be a 'swift and imperative remedy in all cases of illegal restraint or confinement.'" Id. (quoting Fay v. Noia, 372 U.S. 391, 400 (1963)). In light of this reasoning, the Court denies Respondent's motion to stay. B. Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255
1. Legal Standard
A prisoner in custody may move the federal court that imposed a sentence upon him to vacate, set aside, or correct that sentence on 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[.]28. U.S.C. § 2255(a). If the court determines that relief is warranted under § 2255, it must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. at § 2255(b).
2. Analysis
In Johnson, the Supreme Court found unconstitutionally vague the residual clause of the Armed Career Criminal Act ("ACCA"). Johnson, 135 S. Ct. at 2551. The residual clause defined a "violent felony" as one that is "'punishable by imprisonment for a term exceeding one year' and 'is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.'" Id. at 2555-56 (quoting 18 U.S.C. § 924(e)(2)(B)). In finding the residual clause unconstitutional, the Court first reasoned the clause left "grave uncertainty about how to estimate the risk posed by a crime" because "[i]t ties the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements. Id. at 2557. The Court also reasoned the clause left "uncertainty about how much risk it takes for a crime to qualify as a violent felony" because it forced courts to determine potential risk "in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives[, which] are 'far from clear in respect to the degree of risk each poses.'" Id. at 2558 (quoting Begay v. United States, 553 U.S. 137, 143 (2008)). Accordingly, the Court concluded "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563.
Petitioner argues conspiracy to commit robbery, in violation of 18 U.S.G. §§ 7(3) and 2111, is no longer a "crime of violence" under 18 U.S.C. § 924(c) in light of Johnson. Section 924(c) defines "crime of violence" as:
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, or18 U.S.C. § 924(c)(3). Specifically, Petitioner contends conspiracy to commit robbery does not qualify as a crime of violence under subdivision (A), the "force" clause, because it does not have as an element "the use, attempted use, or threatened use of physical force against the person or property of another." (Mem. of P. & A. in Supp. of Mot. at 10.) Respondent agrees. Petitioner further argues conspiracy to commit robbery also does not qualify as a crime of violence under subdivision (B), the "residual" clause, because Johnson has rendered the clause unconstitutionally vague. In Johnson, however, the Supreme Court considered the constitutionality of ACCA's residual clause, not § 924(c)(3)(B). Johnson, 135 S. Ct. at 2551. Moreover, the Court was clear in limiting the reach of its decision. Id. at 2554 ("Holding the residual clause void for vagueness does not put other criminal laws that use terms such as 'substantial risk' in doubt").
(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.
Currently, the Ninth Circuit has yet to address the issues of whether Johnson applies to the residual clause of § 924(c)(3), and whether challenges to § 924(c)(3)(B) are cognizable on collateral review. Several circuit courts, however, have held Johnson does not render § 924(c)(3)(B) unconstitutionally vague because several factors distinguish ACCA's residual clause from § 924(c)(3)(B). See, e.g., United States v. Hill, 832 F.3d 135, 144-50 (2d Cir. 2016); United States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016); United States v. Prickett, No. 15-3486, ___ F.3d ___, 2016 WL 5799691, at *3 (8th Cir. Oct. 5, 2016). The Court finds the reasoning of these circuit decisions persuasive.
First, unlike ACCA's residual clause, § 924(c)(3)(B) does not leave "grave uncertainty about how to estimate the risk posed by a crime" because its statutory language is distinctly narrower. See Taylor, 814 F.3d at 376-77; Prickett, 2016 WL 5799691, at *2; Hill, 832 F.3d at 148. Whereas ACCA's residual clause "requires conduct 'that presents a serious potential risk of physical injury to another,' § 924(c)(3)(B) requires the risk 'that physical force against the person or property of another may be used in the course of committing the offense.'" Taylor, 814 F.3d at 376 (citations omitted) (emphasis in original). "The '[r]isk of physical force against a victim' that § 924(c)(3)(B) requires 'is much more definite than [the] risk of physical injury to a victim' that the ACCA residual clause required." Prickett, 2016 WL 5799691, at *2 (quoting Taylor, 814 F.3d at 376). The Supreme Court in Leocal v. Ashcroft, 543 U.S. 1, 10 (2004), interpreted the breadth of 18 U.S.C. § 16(b), which is in all relevant aspects identical to § 924(c)(3)(B), and noted that it "simply covers offenses that naturally involve a person acting in disregard of the risk that physical force might be used against another in committing the offense." Indeed, "§ 924(c)(3)(B) requires that the felony be one which 'by its nature' involves the risk that the offender will use physical force." Taylor, 814 F.3d at 376. Moreover, because § 924(c)(3)(B) requires "the risk of physical force arise 'in the course of' committing the offense," the person who may potentially use physical force must necessarily be the offender. Id.
Second, unlike ACCA's residual clause, "§ 924(c)(3)(B) does not complicate the level-of-risk inquiry by linking the 'substantial risk' standard, through the word otherwise, 'to a confusing list of examples.'" Taylor, 814 F.3d at 377 (quoting Johnson, 135 S. Ct. at 2561). The use of the word "otherwise" in the ACCA's residual clause forced "courts to interpret 'serious potential risk' in light of the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of explosives." Id. (quoting Johnson, 135 S. Ct. at 2561). In contrast, § 924(c)(3)(B) contains "no mystifying list of offenses and no indeterminate 'otherwise' phraseology" as found in the ACCA's residual clause. Hill, 832 F.3d at 146. As a result, § 924(c)(3)(B) does not leave any "uncertainty about how much risk it takes for a crime to qualify as a violent felony." Johnson, 135 S. Ct. at 2558.
Lastly, "the Supreme Court reached its void-for-vagueness conclusion only after struggling mightily for nine years to come up with a coherent interpretation of the [ACCA's residual clause]." Taylor, 814 F.3d at 376. The Court explained in Johnson "the failure of 'persistent efforts ... to establish a standard' can provide evidence of vagueness." Johnson, 135 S. Ct. at 2258. However, no such history has occurred with respect to § 924(c)(3)(B). Taylor, 814 F.3d at 376. In light of the material differences between ACCA's residual clause and § 924(c)(3)(B), the Court agrees with the circuit decisions that the reasoning of Johnson neither applies to nor renders § 924(c)(3)(B) unconstitutionally vague.
Nevertheless, Petitioner argues Johnson should invalidate § 924(c)(3)(B), because the Ninth Circuit has found unconstitutionally vague the identically worded definition of "crime of violence" in 16 U.S.C. § 16(b), as incorporated in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(F). Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015). Dimaya, however, did not hold that Johnson renders the definition of crime of violence in § 16(b) unconstitutionally vague. The Court held unconstitutional the definition of aggravated felony in § 1101(a)(43)(F), which includes §16(b)'s crime of violence definition. Id. at 1114-20. Indeed, the Court made clear its decision "does not reach the constitutionality of applications of 18 U.S.C. § 16(b) outside of 8 U.S.C. § 1101(a)(43)(F) or cast any doubt on the constitutionality of 18 U.S.C. § 16(a)'s definition of a crime of violence." Id. at 1120 n.17. Therefore, Dimaya does not compel the Court to hold § 924(c)(3)(B) unconstitutional. See Hernandez v. United States, No. 10-CR-3173-H-3 (S.D. Cal. Nov. 8, 2016) ("Dimaya does not control the present issue in this case—the constitutionality of § 924(c)(3)(B).").
The Supreme Court recently granted a petition for writ of certiorari in Dimaya on September 29, 2016. See Lynch v. Dimaya, No. 15-1498, 2016 WL 3232911 (U.S. Sept. 29, 2016). --------
Petitioner's conviction for conspiracy to commit robbery remains a crime of violence under § 924(c)(3)(B). See United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) ("conspiracy to rob in violation of § 1951 'by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense.' § 924(c)(3)(B)."); United States v. Chandler, 743 F.3d 648, 654 (9th Cir. 2014) (holding conspiracy to commit robbery under Nevada law was a violent felony under the residual clause of ACCA because the Court was bound by Mendez to conclude "conspiracy to rob ... 'by its nature, [it] involves a substantial risk that physical force ... may be used in the course of committing the offense.'"). Therefore, Petitioner is not entitled to relief. Accordingly, the Court denies Petitioner's motion.
III.
CONCLUSION
For the foregoing reasons, Respondent's Motion to Stay and Petitioner's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 are denied. The Court grants Petitioner a certificate of appealability. The Clerk is directed to close the associated civil case.
IT IS SO ORDERED. Dated: November 21, 2016
/s/_________
Honorable Dana M. Sabraw
United States District Judge