Opinion
CASE NO. C16-5502 BHS CASE NO. CR08-5828BHS
01-24-2017
JAMES RUSSELL KNOX, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER GRANTING PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE
This matter comes before the Court on Petitioner James Russell Knox's ("Knox") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Dkt. 1. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.
I. BACKGROUND
On February 17, 2009, Knox pled guilty to unarmed bank robbery in violation of 18 U.S.C. § 2113(a). CR08-5828, Dkts. 37, 38. The Court adopted the findings of the Presentence Report ("PSR") that Knox's offense of unarmed bank robbery and his previous offense of armed bank robbery under 18 U.S.C. §2113(a) and (d) qualified as "crimes of violence" under U.S.S.G. § 4B1.2(a). The Court therefore calculated Knox's Sentencing Guidelines range as 151-188 months imprisonment. On May 18, 2009, the Court sentenced Knox to 168 months of imprisonment. Id., Dkts. 44, 45.
On June 18, 2016, Knox filed the instant petition. Dkt. 1. Knox argues that his sentence was improperly enhanced under the career offender residual clause of U.S.S.G. § 4B1.2(a)(2) and seeks relief under Johnson v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct. 1257 (2016). Id. On October 17, 2016, the Government responded. Dkt. 9. On November 16, 2016, Knox replied. Dkt. 10.
II. DISCUSSION
A. Procedural Bars
The Government argues that Knox's § 2255 petition is procedurally barred on the grounds that (1) the petition is untimely, (2) Knox procedurally defaulted his argument that unarmed robbery is not a crime of violence, and (3) Knox waived his right to collaterally attack his sentence. See Dkt. 9 at 6-11.
The petition is timely. A § 2255 motion is timely if filed within one year from "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). This Court has previously stated that "Johnson announced a new substantive rule and substantive rules may be retroactively applied to collaterally attack the career offender residual clause of the Sentencing Guidelines." Gibson v. United States, C15-5737 BHS, 2016 WL 3349350, at *2 (W.D. Wash. June 15, 2016). Johnson was decided on June 26, 2015. 135 S. Ct. 2551. Knox filed his petition less than a year later, on June 18, 2016. Dkt. 1.
Knox has not procedurally defaulted his claim. "[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68 (1982). At the time of Knox's conviction, his present argument, that the career offender residual clause of the Guidelines is unconstitutionally vague, was sufficiently novel "that its legal basis [was] not reasonably available to counsel." Reed v. Ross, 468 U.S. 1, 16 (1984). See Gilbert v. United States, C15-1855 JCC, 2016 WL 3443898, at *3 (W.D. Wash. June 23, 2016). The application of the career offender residual clause resulted in a higher Sentencing Guidelines range calculation than Knox would have otherwise received. "[W]hen a Guidelines range moves up or down, offenders' sentences move with it." Peugh v. United States, 133 S. Ct. 2072, 2084 (2013). Accordingly, Knox can demonstrate both cause and prejudice.
Finally, when Knox entered his plea agreement, he did not waive his right to collaterally attack his sentence based on these grounds. If Knox's Sentencing Guidelines calculation was based on the career offender residual clause, then his sentence violates the law; therefore, his appellate waiver does not apply. United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007); O'Leary v. United States, C16-5531 BHS, 2016 WL 6650998, at *1 (W.D. Wash. Nov. 10, 2016); Dietrick v. United States, No. C16-705 MJP, 2016 WL 4399589, at *2 (W.D. Wash. Aug. 18, 2016); Gilbert v. United States, Case No. 15-cv-1855-JCC, 2016 WL 3443898, at *2 (W.D. Wash. June 23, 2016).
B. Sentencing Guidelines
Knox argues that his sentence is unconstitutional on the basis that it was enhanced under the career offender residual clause in U.S.S.G. § 4B1.2(a)(2). At sentencing, the Court found Knox to be a career offender under the Sentencing Guidelines. This finding was based on Knox's previous conviction of armed bank robbery and his present conviction of unarmed bank robbery. In applying the career offender guideline, the Court cited U.S.S.G. § 4B1.2(a) but failed to specify under which specific clause Knox's conviction of unarmed bank robbery qualified as a "crime of violence."
When determining whether previous offenses are predicates under U.S.S.G. § 4B1.2(a), courts may rely upon the enumerated offenses, the "elements clause," or the "residual clause." The elements clause provides:
The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . has as an element the use, attempted use, or threatened use of physical force against the person of another.U.S.S.G. § 4B1.2(a)(1) (emphasis added). In turn, the residual clause and the enumerated offenses are set forth as follows:
The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . 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)(2) (emphasis added). The parties dispute whether Plaintiff's conviction for unarmed bank robbery may qualify as a "crime of violence" under the elements clause or as an enumerated offense. If not, then the Court more likely than not enhanced Knox's sentence under the residual clause, meaning Knox is entitled to relief under Johnson, 135 S. Ct. 2551, and Welch v. United States, 136 S. Ct. 1257.
The parties' arguments on these questions are identical to those made before Judge Coughenour in Doriety vs. United States, 2:16-cv-00924-JCC, Dkt. 12 (W.D. Wash. 2016). In Doriety, Judge Coughenour determined that unarmed federal bank robbery does not qualify as a crime of violence under the elements clause because: (1) the federal unarmed bank robbery statute does not explicitly require that a defendant intentionally use force, violence, or fear of injury; (2) federal bank robbery may be committed through "intimidation" which does not require a threat of violent physical force, see United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir. 1983), and United States v. Parnell, 818 F.3d 974, 980 (9th Cir. 2016); and (3) the minimum culpable conduct for a conviction of federal unarmed bank robbery does not require the presence of another person. Doriety, 2:16-cv-00924-JCC, Dkt. 12 at 9. Under the same logic articulated in Judge Coughenour's well-reasoned opinion, the Court likewise concludes that federal unarmed bank robbery does not qualify under the elements clause as a "crime of violence."
The Court also rejects the Government's argument that federal unarmed bank robbery is an enumerated offense. Generic robbery was not an enumerated offense at the time of Knox's conviction. Even if it was, federal unarmed bank robbery sweeps more broadly than generic burglary. Doriety, 2:16-cv-00924-JCC, Dkt. 12 at 10. See also United States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008).
Because federal unarmed bank robbery does not qualify as a "crime of violence" under the elements clause or as an enumerated offense, it is likely that the Court relied upon the career offender residual clause in imposing a sentence of 168 months imprisonment. See Doriety, 2:16-cv-00924-JCC, Dkt. 12 at 9-10. Had the Court not done so, it appears that Knox's revised guidelines range would have been 51-63 months. Accordingly, Knox has shown that he has suffered prejudice from an unconstitutional sentence and that he is entitled to relief.
III. ORDER
Therefore, it is hereby ORDERED that Knox's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Dkt. 1) is GRANTED. The Court VACATES the judgment in United States v. Knox, 3:08-cr-05828-BHS, Dkt. 45. The parties shall work with the Clerk to schedule an expeditious resentencing in the criminal case. The Clerk shall close this case.
Dated this 24th day of January, 2017.
/s/_________
BENJAMIN H. SETTLE
United States District Judge