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holding that Johnson "applies with equal force to the identically worded residual clause in the Guidelines"
Summary of this case from Lilley v. United StatesOpinion
CASE NO. C16–0647JLR
2016-10-28
Rogelio CARPIO, Petitioner, v. UNITED STATES of America, Respondent.
Ann Wagner, Michael Filipovic, Nancy Tenney, Federal Public Defender's Office, Seattle, WA, for Petitioner. US Attorney Habeas, Nicholas William Brown, Stephen Paul Hobbs, Michael S. Morgan, US Attorney's Office, Seattle, WA, for Respondent.
Ann Wagner, Michael Filipovic, Nancy Tenney, Federal Public Defender's Office, Seattle, WA, for Petitioner.
US Attorney Habeas, Nicholas William Brown, Stephen Paul Hobbs, Michael S. Morgan, US Attorney's Office, Seattle, WA, for Respondent.
ORDER GRANTING PETITION
JAMES L. ROBART, United States District Judge
I. INTRODUCTION
Before the court is Petitioner Rogelio Carpio's petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his 70–month prison sentence in the wake of the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). (Pet. (Dkt. # 1).) The court has considered Mr. Carpio's petition, the United States of America's ("the Government") answer to Mr. Carpio's petition (Answer (Dkt. # 10)), Mr. Carpio's reply in support of his petition (Reply (Dkt. # 12)), the relevant portions of the record, and the applicable law. Considering itself fully advised, the court GRANTS Mr. Carpio's Section 2255 habeas petition and DIRECTS the Clerk to schedule a resentencing for Mr. Carpio as set forth below.
Neither party requested oral argument, and the court determines that oral argument would not be helpful here. See Local Rules W.D. Wash. LCR 7(d).
II. BACKGROUND
A. Legal Background
In Johnson , the Supreme Court concluded that the Armed Career Criminal Act's ("ACCA") residual clause, which defines a "violent felony" to include any felony that "involves conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague. 135 S.Ct. at 2557. The Supreme Court held that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice and invites arbitrary enforcement by judges," id. and "[i]ncreasing a defendant's sentence under the clause denies due process of law," id. at 2563. The Supreme Court subsequently announced that the rule in Johnson was "a new substantive rule that has retroactive effect in cases on collateral review." Welch , 136 S.Ct. at 1268.
"The void-for-vagueness doctrine prohibits the government from imposing sanctions ‘under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.’ " Welch v. United States, –––U.S. ––––, 136 S.Ct. 1257, 1262, 194 L.Ed.2d 387 (2016) (quoting Johnson, 135 S.Ct. at 2556 ).
Under the United States Sentencing Guidelines ("the Guidelines"), a defendant's base offense level is enhanced if the defendant has "at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). At the time of Mr. Carpio's sentencing, the Guidelines defined a "crime of violence" as "any offense under federal, state, or local law punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against the person or 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." U.S.S.G. § 4B1.2(a). The "crime of violence" definition was comprised of three parts: (1) the elements clause, (2) the enumerated offenses clause, and (3) the residual clause. See United States v. Ladwig , 192 F.Supp.3d 1153, 1157-58, 2016 WL 3619640, at *2 (E.D. Wash. June 28, 2016) (describing identical language in the ACCA as the elements clause, the enumerated offenses clause, and the residual clause).
The Sentencing Commission has adopted an amendment to the definition of "crime of violence" in the Guidelines, effective August 1, 2016, which deletes the residual clause in § 4B1.2(a)(2). See United States v. Grant, No. 09–CR–01035–PJH–1, 2016 WL 3648639, at *1 (N.D. Cal. July 8, 2016) ; United States Sentencing Comm'n , Supplement to the 2015 Guidelines Manual § 4B1.2(a)(2) (Aug. 2016). Unless otherwise stated, all references herein to U.S.S.G. § 4B1.1 and its subsections are to the former U.S.S.G. § 4B1.2 (Nov. 2015).
The Guidelines' former residual clause is at issue in Mr. Carpio's petition. (See generally Pet.) The residual clause allowed a court to enhance a person's sentence if the person has at least two prior convictions for a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). The Guidelines' residual clause was identical to the ACCA's unconstitutional residual clause. Compare 18 U.S.C. § 924(e)(2)(B), with U.S.S.G. § 4B1.2(a)(2) ; see Johnson , 135 S.Ct. at 2557.
The Supreme Court has granted certiorari inBeckles v. United States, No. 15–8544, regarding the application of Johnson to the residual clause in U.S.S.G. § 4B1.2(a)(2). See United States v. Trujillo, No. CR 10–00605 WHA, 2016 WL 3844325, at *1 (N.D. Cal. July 15, 2016) (citing Beckles, No. 15–8544). Specifically, the Supreme Court has granted certiorari to determine, in pertinent part, (1) whether Johnson ' s holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review, and (2) whether Johnson applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2). See id. The Supreme Court also granted certiorari in Beckles to determine whether mere possession of a sawed-off shotgun, an offense listed as a "crime of violence" only in the commentary to U.S.S.G. § 4B1.2, remains a "crime of violence" after Johnson. Id.
The court finds that there is no good reason to delay ruling on Mr. Carpio's petition, even in light of Beckles. In the context of habeas proceedings, there are "special considerations that place unique limits on a district court's authority to stay a case in the interests of judicial economy." Yong v. Immigration & Naturalization Serv., 208 F.3d 1116, 1120 (9th Cir. 2000). "[A]lthough considerations of judicial economy are appropriate, they cannot justify [an] indefinite, and potentially lengthy, stay," particularly where the habeas petitioner would suffer "substantial prejudice" from the delay. Id. at 1120–21. Here, Mr. Carpio would suffer substantial prejudice from any delay because he contends that he has served a sentence longer than what is constitutionally permissible. (See Pet. at 2.)
B. Factual Background
On February 8, 2012, Mr. Carpio pled guilty to one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). United States v. Carpio , No. CR11–0405MJP, Dkt. ## 17 (Change of Plea Hearing), 19 (Plea Agreement). Mr. Carpio, the Government, and the United States Probation Office ("Probation") agreed that Mr. Carpio had two prior crimes of violence under the Guidelines. Id. Dkt. ## 19 (Plea Agreement), 22 (Gov't Sentencing Memo.), 23 (Carpio Sentencing Memo.). Accordingly, all of the parties agreed that Mr. Carpio's total offense level was 25 and corresponded to a Guidelines range of 70 to 87 months. Id. Dkt. ## 19 (Plea Agreement), 22 (Gov't Sentencing Memo.). On May 4, 2012, the court sentenced Mr. Carpio to 70 months' imprisonment. (Pet. at 32 (Sentencing Tr. at 14:8–13).) The court adopted the finding in the presentence report that Mr. Carpio's prior convictions for Washington second-degree robbery and California Rape by Drugs were "crimes of violence" under the Guidelines. (Id. at 32 (Sentencing Tr. at 14:4–7).) The court made no finding on the record, however, as to which part of the Guidelines' definition of crime of violence the court relied on in imposing Mr. Carpio's sentence. (Seeid. at 19–40 (Sentencing Tr.).) The plea agreement stated that Mr. Carpio waived his right to directly appeal and collaterally attack his sentence. (Answer at 6.)
On May 5, 2016, Mr. Carpio filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct this sentence. (See Pet.) He contends that the residual clause in the Guidelines suffers the same constitutional flaw as the identically worded clause at issue in Johnson and is likewise void for vagueness. (Pet. at 4.) Mr. Carpio further argues that his two previous convictions, upon which his 70–month sentence is based, were "crimes of violence" at the time of his sentencing only under the residual clause. (Id. ) Accordingly, he argues that "[t]his unconstitutional conclusion subjected him to a Guidelines range of 70 to 87 months, nearly four years higher than his true Guidelines range of 24 to 30 months." (Id. at 2.) Mr. Carpio argues that if he had not been unconstitutionally sentenced under the Guidelines' residual clause, "he would have been released from prison more than a year ago." (Id. )
III. ANALYSIS
A. Legal Standard
A prisoner in federal custody may collaterally challenge his sentence under 28 U.S.C. § 2255 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 ...." 28 U.S.C. § 2255(a). A prisoner seeking such relief must generally bring his Section 2255 petition within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). However, a prisoner may also seek habeas relief within one year of "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." 28 U.S.C. § 2255(f)(3). To determine whether the court imposed an unconstitutional sentence pursuant to the residual clause in the Guidelines and whether Mr. Carpio's petition is timely, the court must first determine whether Johnson applies to the Guidelines and if it does, whether it applies retroactively to cases on collateral review.
B. Johnson and the Guidelines
The court must decide two threshold questions: (1) whether the holding in Johnson —that the ACCA's residual clause is unconstitutionally vague—applies to the identically worded residual clause in the Guidelines; and (2) if so, whether Johnson applies retroactively to cases on collateral review. Judges in the Western District of Washington have uniformly concluded that the residual clause in the Guidelines is unconstitutionally vague under Johnson and that the decision applies retroactively to the Guidelines. See Gilbert v. United States , No. C15–1855JCC, 2016 WL 3443898 (W.D. Wash. June 23, 2016) ; Pressley v. United States , 201 F.Supp.3d 1277, 2016 WL 4440672 (W.D. Wash. Aug. 11, 2016) ; Jennings v. United States , No. C16–0616MJP, 2016 WL 4376778 (W.D. Wash. Aug. 17, 2016) ; Dietrick v. United States , No. C16–0705MJP, 2016 WL 4399589 (W.D. Wash. Aug. 18, 2016) ; Parker v. United States , No. C16–0534RSM, 2016 WL 4418007 (W.D. Wash. Aug. 19, 2016) ; Beyer v. United States , No. C16–5282BHS, 2016 WL 4611547 (W.D. Wash. Sept. 6, 2016) ; Acoba v. United States , No. C16–0531BHS, 2016 WL 4611546 (W.D. Wash. Sept. 6, 2016) ; see also Ladwig , 192 F.Supp.3d 1153, 2016 WL 3619640 ; United States v. Dean , 169 F.Supp.3d 1097 (D. Or. 2016) ; United States v. Hoopes , 195 F.Supp.3d 1161, 2016 WL 3638114 (D. Or. July 5, 2016). The undersigned judge sees no reason to deviate from these well-reasoned decisions and reaches the same conclusion.
The Ninth Circuit Court of Appeals has "decline[d] to decide whether Johnson 's reasoning extends to the Sentencing Guidelines ...." United States v. Lee, 821 F.3d 1124, 1127 n.2 (9th Cir. 2016).
1. Johnson 's Applicability to the Guidelines' Residual Clause
The court agrees with Mr. Carpio that Johnson's holding applies with equal force to the identically worded residual clause in the Guidelines. (See Pet. at 14–15.) Before the Supreme Court decided Johnson , the Ninth Circuit Court of Appeals had allowed vagueness challenges to the Guidelines. See United States v. Johnson , 130 F.3d 1352, 1354 (9th Cir. 1997). The Ninth Circuit also makes "no distinction between the terms ‘violent felony’ [in the ACCA] and 'crime of violence [in the Guidelines] for purposes of interpreting the residual clause." United States v. Spencer , 724 F.3d 1133, 1138 (9th Cir. 2013). The court concludes that the Ninth Circuit's identical treatment of the two residual clauses dictates that Johnson 's vagueness holding applies to the Guidelines. See, e.g. , Gilbert , 2016 WL 3443898, at *1 ; Pressley , ––– F.Supp.3d at ––––, 2016 WL 4440672, at *1 ; Jennings , 2016 WL 4376778, at *1 ; Parker , 2016 WL 4418007, at *2. In addition, the Government "agrees that Johnson ['s] vagueness holding applies to the Career Offender Guideline[s'] residual clause." (Answer at 10, 14.) For all of these reasons, the court concludes that the Guidelines' residual clause is unconstitutionally vague.
Some courts have suggested that because Beckles is pending before the Supreme Court, petitioners seeking a resentencing under the Guidelines do not yet have a ripe claim. See, e.g., United States v. Dunlap, No. CR 10–00400 WHA, 2016 WL 3844324, at *2 (N.D. Cal. July 15, 2016). The Government also makes this argument in its answer. (Answer at 21–23.) However, "to apply Johnson to this case, this [c]ourt need only recognize that Johnson created a new substantive rule that invalidates the Guidelines residual clause. No additional new rule need be recognized." Gilbert, 2016 WL 3443898, at *6. Accordingly, Mr. Carpio's claim is ripe.
2. Retroactivity of Johnson as to the Guidelines
For Mr. Carpio to benefit from Johnson , however, the rule must apply retroactively to cases on collateral review. The Government argues that Johnson does not apply retroactively to petitioners challenging an advisory Guidelines calculation, even though the Supreme Court held that Johnson applied retroactively to collateral attacks on sentences imposed under the ACCA's residual clause. (Id. at 15); see alsoWelch , 136 S.Ct. at 1262. Specifically, the Government contends that Johnson 's holding as applied to the Guidelines is a new procedural rule, not a new substantive rule. (Answer at 4.) Mr. Carpio counters that "[t]he fact that Welch arose in the context of the ACCA is of no effect [because] [t]he Court did not limit its holding to ACCA cases." (Pet. at 15.) Mr. Carpio argues that the same rationale that led the Welch Court to hold that Johnson applies retroactively to the ACCA should lead this court to hold that Johnson applies retroactively to the Guidelines. (Id. )
Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) provides the framework for assessing whether a new rule is retroactive in cases on federal collateral review. See Montgomery v. Louisiana , ––– U.S. ––––, 136 S.Ct. 718, 728, 193 L.Ed.2d 599 (2016). Teague bars new procedural rules from applying retroactively. Id. Accordingly, "[t]he threshold questions for Teague application are whether the articulated rule is (1) a new constitutional rule and (2) procedural or substantive." Reina–Rodriguez , 655 F.3d at 1188. Under Teague , "a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." 489 U.S. at 301, 109 S.Ct. 1060. The second inquiry "depends ... on whether the new rule itself has a procedural function or a substantive function—that is, whether it alters only the procedures used to obtain the conviction, or alters instead the range of conduct or class of persons that the law punishes." Welch , 136 S.Ct. at 1266. Substantive rules "include[ ] ... constitutional determinations that place particular conduct or persons covered by the statute beyond the State's power to punish." Id. at 1265 (quoting Schriro , 542 U.S. at 353, 124 S.Ct. 2519 ). On the other hand, procedural rules " 'are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining the defendant's culpability." Montgomery , 136 S.Ct. at 730 (quoting Schriro v. Summerlin , 542 U.S. 348, 353, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004) (emphasis omitted)). Generally, substantive rules and "new watershed rules of criminal procedure" are retroactive. Id. at 1264 (citing Schriro , 542 U.S. at 351, 124 S.Ct. 2519 (2004) ).
The Ninth Circuit Court of Appeals has "squarely held that Teague applie[s] to federal prisoner petitioners," although it has also noted that there is some question as to whether that is accurate, given Teague 's concern with the finality of state convictions. Reina–Rodriguez v. United States, 655 F.3d 1182, 1190 (9th Cir. 2011). For purposes of this petition, however, the court adheres to this Ninth Circuit precedent applying Teague to federal prisoner petitioners.
The Welch court held that the new rule announced in Johnson —that the ACCA's residual clause is unconstitutional—applies retroactively because it is a substantive rule that "alters the range of conduct or the class of persons that the law punishes." 136 S.Ct. at 1265. The Welch court determined that Johnson was not a procedural rule 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." Id. at 1265. The rule in Johnson did not, for example, allocate decisionmaking authority between judge and jury or regulate the evidence that the court could consider in making its decisions." Id. Rather, "[b]y striking down the residual clause as void for vagueness, Johnson changed the substantive reach of the [ACCA], altering ‘the range of conduct or the class of persons that the [ACCA] punishes.’ " Id. (quoting Schriro , at 353, 124 S.Ct. 2519 ).
The Government argues that whether the new Johnson "rule is substantive or procedural depends on the ‘function of the rule at issue.’ " (Answer at 15 (quoting Welch , 136 S.Ct. at 1266 ).) Because of this distinction, the Government argues that, even though the rule is substantive as applied in the ACCA context, it is procedural as applied in the Guidelines context. (Seeid. at 15–16.) The Government argues that the rule is procedural in the Guidelines context because it "regulate[s] only the manner of determining the defendant's culpability.' " Id. at 16 (quoting Welch , 136 S.Ct. at 1265 ).) Although courts across the country have split on this issue, judges in this District have uniformly rejected the Government's position. Gilbert , 2016 WL 3443898, at *5 ; Pressley , 201 F.Supp.3d at 1279-80, 2016 WL 4440672, at *2 ; Dietrick , 2016 WL 4399589, at *3 ; Parker , 2016 WL 4418007, at *6 ; Beyer , 2016 WL 4611547, at *1 ; contra, e.g. , Richardson v. United States , 623 Fed.Appx. 841, 842 (8th Cir. 2015) ; Frazier v. United States , No. 1:09–CR–188–CLC–SKL–1, 2016 WL 885082, at *6 (E.D. Tenn. Mar. 8, 2016), appeal filed No. 16–5299 (6th Cir. Mar. 15, 2016).
Although the Guidelines are advisory, they are "the lodestone of sentencing." Peugh v. United States , ––– U.S. ––––, 133 S.Ct. 2072, 2084, 186 L.Ed.2d 84 (2013). District courts must consult the Guidelines, use them as a starting point, and remain cognizant of them when imposing a sentence. See Molina–Martinez v. United States , ––– U.S. ––––, 136 S.Ct. 1338, 1342, 194 L.Ed.2d 444 (2016). "[W]hen a Guidelines range moves up or down, offenders' sentences move with it." Peugh , 133 S.Ct. at 2084. Thus, the residual clause in the Guidelines alters the range of conduct or class of persons that may be punished, see Reina–Rodriguez , 655 F.3d at 1189 (determining that a new rule was substantive because it "altered the punishment that can be imposed on federal defendants" under the Guidelines), because "Johnson substantively changes the conduct by which federal courts may enhance the sentence of a defendant under the Guidelines," Dean , 169 F.Supp.3d at 1119. Although the ACCA dictates a mandatory minimum sentence, the Guidelines' residual clause nevertheless subjects a prisoner "to higher advisory Guidelines ranges." United States v. Walker , No. CR 12–0430 CW, 214 F.Supp.3d 866, 873, 2016 WL 5921257, at *5 (N.D. Cal. Oct. 5, 2016). The court is persuaded that "a rule declaring the Guidelines' Residual Clause unconstitutionally vague ... alters the class of persons subject to career offender-enhanced sentences." Parker , 2016 WL 4418007, at *5 (internal quotations omitted); see also Gilbert , 2016 WL 3443898, at *5 ("[Johnson ] substantively changes the conduct by which federal courts may enhance the sentence of a defendant under the Guidelines." (internal quotations omitted)). Accordingly, the rule announced in Johnson is substantive in the Guidelines context and applies retroactively.
Mr. Carpio's petition is therefore timely because he brings the petition within one year of "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." 28 U.S.C. § 2255(f)(3).
Ninth Circuit precedent further steers the court to reject the Government's proposed "as-applied analysis." Dean , 169 F.Supp.3d at 1118. In Reina–Rodriguez , the Ninth Circuit Court of Appeals determined that a rule that applied retroactively in the ACCA context also applied retroactively in the Guidelines context. 655 F.3d at 1189. The Ninth Circuit held that the earlier-announced rule "altered the conduct that substantively qualifies as burglary under the categorical approach" pursuant to the Guidelines as well. Id. Under the rationale of Reina–Rodriguez , "when a new rule is substantive as applied to the ACCA, it is also substantive as applied to the Guidelines." Gilbert , 2016 WL 3443898, at *5. The Government "acknowledges [that its proposed approach] is in tension with Reina–Rodriguez " (Answer at 19), and the court sees no reason to create a distinction here where precedent indicates otherwise. Accordingly, the court declines to find that the Johnson rule is procedural as applied to the Guidelines.
The Government argues that the Reina–Rodriguez court did not specifically decide the issue of whether a substantive rule in the ACCA context is necessarily a substantive rule in the Guidelines context. (Answer at 20.) The court nevertheless finds that the Ninth Circuit's analysis in holding that a rule substantive in the ACCA context was also substantive in the Guidelines context strongly suggests that a similar outcome is warranted here. See Reina–Rodriguez, 655 F.3d at 1189.
The Government also acknowledges that "[i]n preJohnson... litigation, the [G]overnment took the position that new statutory rules narrowing eligibility for a sentencing enhancement are substantive and retroactive to cases on collateral review regardless of whether the enhancement arose under [the] ACCA or the Guidelines." (Answer at 19 n.12.) The Government contends that its "prior contrary concessions obviously do not bind this [c]ourt ... [or] confer any rights upon defendants." (Id. )
C. The Court's Reliance on the Residual Clause in Sentencing
The court must next determine whether the sentencing court relied on the Guidelines' residual clause when it imposed Mr. Carpio's sentence. If it did not and instead relied on the elements clause or the enumerated offenses clause, Mr. Carpio is not entitled to the relief he seeks. For the reasons set forth below, the court concludes that at least one of Mr. Carpio's prior convictions could not have been considered a crime of violence without reference to the residual clause.
Even though the sentencing record is silent on the issue, Mr. Carpio contends that the court necessarily sentenced him under the residual clause because neither of his prior convictions qualify as crimes of violence under the elements or enumerated offenses clauses. (Pet. at 5.) First, Mr. Carpio asserts that " California Penal Code § 261(a)(3) [Rape by Drugs] lacks a force element" such that the conviction cannot fall within the elements clause, and that rape is not an enumerated offense. (Id. at 6.) Mr. Carpio next argues that his conviction for Washington second-degree robbery does not qualify as a crime of violence except under the residual clause because it does not require violent force, "it criminalizes the taking of property by fear of injury or constructive force," and "it allows the force element to be met by fear of injury to property rather than a person." (Id. at 8.) Mr. Carpio contends that "the standard applicable to constitutional errors introduced at trial or sentencing is the Brecht v. Abrahamson [, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993),] harmless-error analysis, not the preponderance of the evidence standard discussed in Simmons [v. Blodgett , 110 F.3d 39 (9th Cir. 1997) ], which is the standard for evidentiary proceedings aimed at uncovering extrajudicial facts." (Id. at 14.)
The Government counters that Mr. Carpio cannot show that the court "actually relied on the residual clause of USSG § 4B1.2(a)(2) to find these convictions qualified as crimes of violence" when the court sentenced Mr. Carpio. (Answer at 8.) According to the Government, "[t]he burden is on the [28 U.S.C.] § 2255 movant to prove, by a preponderance of the evidence, the existence of an error rendering his conviction or sentence unlawful." (Id. at 24 (citing Simmons , 110 F.3d at 42 ).) The Government contends that Mr. Carpio's prior robbery and Rape by Drugs convictions "were most likely treated as ... crime[s] of violence because the parties agreed they were, not because the [c]ourt decided these convictions qualified under the Career Offender Guideline[s'] residual clause." (Id. at 25.) Mr. Carpio notes that at least two District Courts in Washington have rejected the Government's proposed burden of proof. (Reply at 13); see also Ladwig , 192 F.Supp.3d at 1157-59, 2016 WL 3619640, at *2–3 (holding that "[i]n the context of a potential deprivation of such a [due process] right, a showing that the sentencing court might have relied on an unconstitutional alternative ought to be enough to trigger inquiry into whether the sentencing court's consideration of that alternative was harmless"); Gibson v. United States , 2016 WL 3349350, at *1–2 (W.D. Wash. 2016).
The Government provided the court with supplemental authority from the Seventh Circuit Court of Appeals as further support for the court's adoption of the burden the Government contends Mr. Carpio must meet. (See Dkt. # 11); Stanley v. United States, 827 F.3d 562 (7th Cir. 2016). The court determines that Stanley does not impact the court's analysis that Mr. Carpio's prior conviction for Rape by Drugs was a crime of violence only under the residual clause. See infra § III.C. In Stanley, the petitioner ignored that the sentencing court had found that one of his prior convictions was a drug conviction and that "the district court counted" one of his other prior convictions "under the elements clause." Id. at 565. That situation is not present here.
Indeed, several courts have determined that Section 2255 petitioners need not meet the burden the Government proposes. See Ladwig, 192 F.Supp.3d at 1159-60, 2016 WL 3619640, at *4–5 ; Gibson, 2016 WL 3349350, at *1–2 ; Dietrick, 2016 WL 4399589, at *3.
1. Prior Rape by Drugs Conviction
The court need not decide the exact showing Mr. Carpio must make, however, because the court finds that, under either standard, Mr. Carpio's prior conviction for Rape by Drugs could only have qualified as a crime of violence under the unconstitutional residual clause. The Government agrees with Mr. Carpio that this crime lacks a force element and is not a crime of violence under the elements clause. (Answer at 24, n.14 (citing United States v. Beltran–Munguia , 489 F.3d 1042, 1046 (9th Cir. 2007) (holding that a sex offense committed by "surreptitiously adding to [the] victim's drink a drug" was not a crime of violence under the identically worded elements clause in U.S.S.G. § 2L1.2(b)(1)(A)(ii) ), 11 ("[W]hen [Mr.] Carpio was sentenced in 2012 [his] conviction [for Rape by Drugs] qualified under § 4B1.2(a)'s residual clause." (citing United States v. Riley , 183 F.3d 1155, 1159–61 (9th Cir. 1999) ).) The Government concedes that "[b]ecause this crime does not involve any force apart from that inherent in sexual intercourse..., it does not have as an element the use, attempted use, or threatened use of physical force a[s] required by USSG § 4B1.2(a)(1)." (Answer at 24, n.14.)
The Government does not appear to argue that rape is an enumerated offense under the Guidelines. (Seeid. at 6, 24–27.) However, in asserting that Mr. Carpio's prior robbery conviction qualifies as a crime of violence under the enumerated offenses clause, the Government argues that a conviction can qualify "if the conviction matches the generic definition of an offense listed in Application Note 1 of the Commentary to this Guideline." (Id. at 28.) Application Note 1 states that the definition of " ‘[c]rime of violence’ includes ... forcible sex offenses ...." U.S.S.G. § 4B1.2, appl. n.1. Although courts have noted that it is unsettled whether offenses listed in Application Note 1 constitute enumerated offenses or examples of offenses that fall within the residual clause, see United States v. Bacon , No. CR10–0025JLQ, 2016 WL 6069980, at *4 (E.D. Wash. Oct. 14, 2016), the Government concedes that the Rape by Drugs offense "does not involve any force apart from that inherent in sexual intercourse" (Answer at 24, n.14). Accordingly, the court finds that Mr. Carpio's Rape by Drugs conviction also could not have fallen within the enumerated offenses clause, even assuming that Application Note 1 lists enumerated offenses rather than examples of offenses within the residual clause.
Thus, even though the record is silent, in order for Mr. Carpio to have been given an enhanced sentence under the Guidelines, the court must have relied on the residual clause. Regardless of whether Mr. Carpio must show that the court sentenced him under the residual clause by a preponderance of the evidence or that any error in his sentencing was not harmless, the court concludes that Mr. Carpio has met his burden of demonstrating that his prior Rape by Drugs conviction was a crime of violence only under the residual clause.
2. Prior Second–Degree Robbery Conviction
Mr. Carpio makes the same argument about his prior robbery conviction. He states that second-degree robbery in Washington "is not an enumerated offense nor does it meet the requirement that it ‘has as an element the use, attempted use, or threatened use of physical force against the person or property of another.’ " (Pet. at 6 (quoting U.S.S.G. § 924(e)(2)(B)(i)- (ii)).) The Government counters that "implicit" in this argument "is a claim that Washington's robbery statute is indivisible within the meaning of Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013)" and overbroad under Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (" Johnson I "). (Answer at 2.) The Government contends Mr. Carpio "disguise[s] these Descamps -based arguments" as Johnson claims, and his claims are therefore untimely. (Answer at 4.)
Without deciding the issue, the court notes that there is a split of authority on whether a petitioner raising an ostensible Johnson claim may rely on Descamps or Johnson I in arguing that his prior offenses were crimes of violence only under the residual clause. Compare, e.g. , Ladwig , 192 F.Supp.3d at 1159-60, 2016 WL 3619640, at *4–5 ; Gibson , 2016 WL 3349350, at *1–2 ; Dietrick , 2016 WL 4399589, at *3, with Williams v. United States , C16–0939RSM, 2016 WL 5920083 (W.D. Wash. Oct. 11, 2016). Here, because the court has determined that Mr. Carpio's prior conviction for Rape by Drugs was a crime of violence only under the residual clause, the court need not evaluate Mr. Carpio's robbery conviction to determine whether Mr. Carpio is entitled to resentencing. See U.S.S.G. § 2K2.1(a)(2) (stating that a defendant's base offense level is enhanced if the defendant has "at least two felony convictions of ... a crime of violence ...."); U.S.S.G. § 4B1.2(c)(1) ("The term ‘two prior felony convictions' means ... the defendant committed the instant offense of conviction subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense (i.e. , two felony convictions of a crime of violence, two felony convictions of a controlled substance offense, or one felony conviction of a crime of violence and one felony conviction of a controlled substance offense ...."). To the extent the categorization of Mr. Carpio's second-degree robbery conviction impacts Mr. Carpio's resentencing, the parties will have the opportunity to address the issue in the resentencing proceedings.
The Government provided the court the Williams decision as supplemental authority and argues that the decision provides support for the Government's position that the petitioner must show that the court actually relied on the residual clause in sentencing the petitioner. (See Dkt. # 19.) The Williams court addressed the arguments that the Government makes as to Mr. Carpio's prior second-degree robbery conviction—that Mr. Carpio relies on timebarred claims under Descamps and Johnson I to show that the conviction does not fall within a clause other than the residual clause. See Williams, 2016 WL 5920083, at *4. The court there "agree[d] with the Government that Petitioner [could not] show that the Court actually relied on the residual clause of USSG § 4B1.2(a)(2) to find his harassment conviction qualified as a crime of violence, and even if the Court did rely on that clause when evaluating his armed robbery conviction, any such mistake was harmless." Id. The court finds Williams distinguishable as to Mr. Carpio's prior conviction for Rape by Drugs, however, because the Government concedes that this conviction does not fall within the elements clause. (See Answer at 24 n.14.) That concession, as well as the fact that Rape by Drugs is not an enumerated offense, demonstrates that Mr. Carpio does not rely on a rule subsequent to his sentencing but prior to Johnson to challenge his sentence. His claim is not timebarred for this reason.
Accordingly, the Court grants Mr. Carpio's motion and determines that Mr. Carpio is entitled to resentencing because the court imposed his sentence "in violation of the Constitution." 28 U.S.C. § 2255(a).
D. Procedural Default and Cause
Mr. Carpio did not raise his claims on direct appeal or argue at any other point that the Guidelines' residual clause was unconstitutionally vague. (See Pet.; Answer at 10–14); United States v. Ratigan , 351 F.3d 957, 962 (9th Cir. 2003). To overcome this procedural default, Mr. Carpio must demonstrate both (1) "cause" and (2) "actual prejudice resulting from the errors of which he complains." United States v. Frady , 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). He may demonstrate "cause" by showing "that the procedural default is due to an objective factor that is external to [him] and that cannot be fairly attributed to him." Manning v. Foster , 224 F.3d 1129, 1133 (9th Cir. 2000) (internal quotations omitted). The petitioner can make this showing when "the factual or legal basis for a claim was not reasonably available to counsel" at the time of direct appeal. Murray v. Carrier , 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). To demonstrate "prejudice" as to a Guidelines error, the petitioner "must at least show that the error affected the outcome of his sentencing proceeding." Dean , 169 F.Supp.3d at 1109. Put another way, "[p]rejudice is shown when ‘there is a reasonable probability’ that the result of a petitioner's sentencing would have been different without the error to which the petitioner failed to object." Gilbert , 2016 WL 3443898, at *3 (quoting Strickler v. Greene , 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ); see also Murray , 477 U.S. at 493–94, 106 S.Ct. 2639 (The level of prejudice required to overcome procedural default is "significantly greater than that necessary under the more vague inquiry suggested by the words ‘plain error.’ ").
Mr. Carpio has overcome the procedural default in this case. Mr. Carpio argues that he could not have reasonably challenged the Guidelines' residual clause as unconstitutional at the time of his sentencing. (Reply at 32–33.) Prior to Mr. Carpio's sentencing, the Supreme Court had upheld the ACCA residual clause against multiple vagueness challenges. See James v. United States , 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (upholding ACCA's residual clause on constitutional vagueness challenge); Sykes v. United States , 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011) (same); see also Johnson , 135 S.Ct. at 2563 ("Our contrary holdings in James and Sykes are overruled."). The Government's argument that "[t]he rule announced in Johnson ... has been forecast since Justice Scalia raised this possibility in the first case rebuffing a vagueness challenge to ACCA's residual clause" (Answer at 12) does not change the fact that at the time of Mr. Carpio's sentencing the Supreme Court had twice rejected a constitutional challenge to the residual clause. The law does not require Mr. Carpio to raise futile arguments at his sentencing to be entitled to relief from an unconstitutional sentence. See English v. United States , 42 F.3d 473, 479 (9th Cir. 1994). The court concludes that this argument—that the Guidelines' residual clause was unconstitutionally vague—was not reasonably available to Mr. Carpio when the court sentenced him.
Further, for the reasons discussed above, the sentencing error affected the outcome of Mr. Carpio's sentence. The determination that Mr. Carpio's prior conviction for Rape by Drugs was a crime of violence impacted Mr. Carpio's sentence—it constituted one of the two prior crimes of violence upon which the court enhanced his sentence. See supra § III.C.1. Accordingly, Mr. Carpio has demonstrated cause and prejudice, and procedural default does not bar his claim.
E. Collateral Review Waiver
At Mr. Carpio's sentencing, the Government represented to the court that the plea agreement did not contain a collateral review waiver, when in fact the agreement did. (See Pet. at 38 (Sentencing Tr. at 20:2–3).) However, the Government concedes that the collateral review waiver is void because of the Government's representation at sentencing. (Answer at 7–8.) The court therefore concludes that Mr. Carpio has not waived his right to seek collateral review.
A collateral review waiver will also be invalid where a court imposes an "illegal sentence" that "violates the Constitution." United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). Given the parties' agreement, the court does not address this ground for invaliding a collateral review waiver.
IV. CONCLUSION
Based on the foregoing, the court GRANTS Mr. Carpio's motion to vacate, correct, or set aside his sentence (Dkt. # 1) pursuant to 28 U.S.C. § 2255. The court VACATES and SETS ASIDE the sentence in No. CR11–00405MJP (W.D. Wash.). The court will resentence Mr. Carpio, permit him to submit objections to his Presentence Report pursuant to Federal Rule of Criminal Procedure 32(i)(1)(D), and allow both Mr. Carpio and the Government to argue for an appropriate and lawful sentence. The parties shall contact the court's Courtroom Deputy to provide their recommendations and availability for an appropriate sentencing date for the court's consideration. The court further DIRECTS the Clerk of Court to forward a copy of this order to Mr. Carpio and all counsel of record.