Summary
granting § 2255 motion challenging § 924(c) conviction based on Davis and concluding that petitioner's collateral-review waiver could not be enforced
Summary of this case from Ornelas-Castro v. United StatesOpinion
Case No. 12-cr-00748-RS-1
2019-11-08
UNITED STATES of America, Plaintiff, v. Lafonso Luke BROWN, Defendant.
Ajay K. Krishnamurthy, Natalie Lee, Assistant US Attorney, US Attorney's Office, Northern District of California San Francisco, CA, for Plaintiff.
Ajay K. Krishnamurthy, Natalie Lee, Assistant US Attorney, US Attorney's Office, Northern District of California San Francisco, CA, for Plaintiff.
ORDER GRANTING MOTION TO VACATE, SET ASIDE, AND CORRECT CONVICTION AND SENTENCE
RICHARD SEEBORG, United States District Judge
I. INTRODUCTION
Defendant Lafonso Luke Brown pled guilty to conspiring to commit robbery affecting interstate commerce, 18 U.S.C. § 1951(a), and to possessing a firearm in furtherance of that conspiracy, 18 U.S.C. § 924(c), in December 2013. The latter charge, a "crime of violence" under 18 U.S.C. § 924(c)(3)(B) ("residual clause"), carried a five-year mandatory minimum custodial sentence to be served consecutively to any other sentence imposed. However, his past June, the United States Supreme Court held that the residual clause is unconstitutionally vague. United States v. Davis , ––– U.S. ––––, 139 S.Ct. 2319, 2323–24, 204 L.Ed.2d 757 (2019). Brown now moves, pursuant to 28 U.S.C. § 2255 and in light of Davis , for his conviction and sentence to be vacated, set aside, and corrected. For the reasons set forth below, Brown's motion is granted.
II. BACKGROUND
An October 18, 2012 indictment charged Brown with conspiracy to distribute and possess with intent to distribute cocaine, 21 U.S.C. § 846 (Count 1); conspiracy to commit robbery affecting interstate commerce, 18 U.S.C. § 1951(a) (Count 2); possession of a firearm during and in relation to and in furtherance of a crime of violence and a drug trafficking crime, i.e. Count 2, 18 U.S.C. § 924(c) (Count 3); and being a felon in possession of a firearm, 18 U.S.C. § 922(g) (Count 4). Brown pled guilty to Counts 2 and 3, and the government dropped Counts 1 and 4. As the factual basis for his plea, Brown admitted that he had agreed with others to rob a cocaine stash house and to use a firearm in the commission of that robbery.
Nowhere in his plea agreement or during his change of plea hearing did Brown admit to intending to distribute or possess with intent to distribute cocaine (Count 1). The predicate felony underlying his 18 U.S.C. § 924(c) conviction was identified as "a crime of violence, to wit, the conspiracy to commit robbery charged in Count Two of the Indictment." See Plea Agreement, ECF No. 74, at 2; see also id. at 1 ("I agree to plead guilty to...Conspiracy to Commit Robbery Affecting Interstate Commerce...and Possessing a Firearm in Furtherance of a Crime of Violence."). The government agreed not to prosecute Brown for conspiring to possess with intent to distribute cocaine, as charged in Count 1, or for possessing a firearm in furtherance of a drug trafficking crime, as charged in Count 3. Brown waived his right to appeal his conviction, directly or collaterally, including under 28 U.S.C. § 2255 ("collateral-attack waiver").
On April 1, 2014, Brown received an aggregate sentence of 111 months in prison: 51 months on Count 2, and a consecutive 60-month mandatory minimum sentence on Count 3, the § 924(c) charge. Brown is currently incarcerated at the United States Penitentiary, Atwater with a scheduled release date of November 10, 2020. However, on June 24, 2019, the United States Supreme Court held that the residual clause—the very statute under which Brown was convicted—is unconstitutionally vague. Davis , 139 S.Ct. at 2323–24. Brown subsequently filed the present petition to have his conviction and sentence vacated, set aside, and corrected.
III. LEGAL STANDARD
A federal sentencing court is authorized to grant relief if it concludes 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 finds that relief is warranted under § 2255, it must vacate and set the judgment aside and then discharge the prisoner, resentence him, grant a new trial, or correct the sentence as may appear appropriate. 28 U.S.C. § 2255(b) ; United States v. Barron , 172 F.3d 1153, 1157 (9th Cir. 1999). Vacating the judgment does not prevent the reinstatement of unchallenged counts when the court decides to resentence or correct the sentence. See id.
A federal court may not grant habeas corpus relief to a prisoner based on a constitutional rule of criminal procedure announced after his conviction and sentence became final unless the rule fits within one of two narrow exceptions. Teague v. Lane , 489 U.S. 288, 310–16, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The only new rules that apply retroactively are (1) those that place a class of conduct beyond the authority of the criminal law to proscribe and (2) watershed rules of criminal procedure. Id. at 311, 109 S.Ct. 1060. Unless the government argues that a new rule of criminal procedure falls into one of the two Teague exceptions, the court need not raise the issue. See Goeke v. Branch , 514 U.S. 115, 117, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995).
IV. DISCUSSION
The government does not dispute that, to the extent Brown's 18 U.S.C. § 924(c) conviction was predicated on a crime of violence, i.e. the conspiracy to commit robbery, any sentence under that conviction "was imposed in violation of the Constitution," 28 U.S.C. § 2255(a). Nor does the government dispute that Davis applies retroactively. Every Circuit which has so far considered the issue agrees. See United States v. Bowen , 936 F.3d 1091, 1097–98 (10th Cir. 2019) ; United States v. Reece , 938 F.3d 630, 635 (5th Cir. 2019) ; In re Hammoud , 931 F.3d 1032, 1038–39 (11th Cir. 2019). Thus, the parties concur that Brown's § 924(c) conviction cannot stand, to the extent that the predicate felony was conspiracy to commit robbery. However, the government argues that Brown's § 924(c) conviction is based on an additional predicate felony: the drug trafficking conspiracy charged in Count 1 of his indictment. Additionally, the government contends, Brown is procedurally barred from bringing this § 2255 petition by his failure to raise his claims on direct appeal and by virtue of the collateral-attack waiver in his plea agreement.
The Ninth Circuit has not yet considered the issue.
A. Alternative Predicate Felony
In order to have been convicted under Count 1 of the indictment, Brown would have had to admit, or the government would have had to prove, that he intended to distribute or possess with intent to distribute cocaine. See United States v. Suarez , 682 F.3d 1214, 1219 (9th Cir. 2012) (requiring the government to prove that "the defendant intended to commit the underlying offenses" to sustain a conviction under 21 U.S.C. § 846 ). The factual basis for the plea does not contain any indication of such intent. Brown admitted that he intended to rob a cocaine stash house. He admitted that he intended to use a firearm in the commission of that robbery. He did not admit anywhere in the plea agreement or in his plea colloquy that he intended to distribute or possess with intent to distribute the cocaine.
If anything, the plea agreement suggests the absence of a factual basis for convicting Brown under Count 1, as it contains no reference to such facts. The plea agreement is unambiguous about the predicate felony underlying his 18 U.S.C. § 924(c) conviction: it was a "crime of violence, to wit, conspiracy to commit robbery." See Plea Agreement at 2. Cf. United States v. Charles , 581 F.3d 927, 931 (9th Cir. 2009) ("The drafter of the plea agreement, typically the government, is responsible for any lack of clarity such that ambiguities are construed in favor of the defendant."). To base any part of Brown's conviction and sentence on facts that have neither been admitted nor proven to a jury would violate his constitutional rights. See United States v. Booker , 543 U.S. 220, 249-50, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).
The only authority that the government invokes in support of its notion that there are two predicate felonies for Brown's 18 U.S.C. § 924(c) conviction is inapposite. The government is correct that harmless error review applies to "[a]n instructional error arising in the context of multiple theories of guilt" put before a jury. Hedgpeth v. Pulido , 555 U.S. 57, 61, 129 S.Ct. 530, 172 L.Ed.2d 388 (2008). However, it offers no authority for the proposition that the same principle should apply to guilty pleas. Brown correctly points out that many district courts have rejected this very argument. See, e.g. , Benitez v. United States , No. 16-cc-23974, 2017 WL 2271504, at *5-6 (S.D. Fla. Apr. 6, 2017) ("To the extent that the factual proffer or indictment includes information about drug trafficking offenses, those facts were not ‘elements’ of the crime to which Movant pled and were not found beyond a reasonable doubt."). Brown's 18 U.S.C. § 924(c) conviction was predicated solely on a "crime of violence," i.e. his conspiracy to commit robbery.
B. Procedural Bars
Habeas claims are defaulted if not raised on direct appeal—unless the petitioner can demonstrate "cause" for the default and "prejudice" arising from the claim. See Trevino v. Thaler , 569 U.S. 413, 133 S.Ct. 1911, 1917, 185 L.Ed.2d 1044 (2013). Cause exists where the legal claim is so novel at the time of appeal that it was not "reasonably available." See Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). A claim is not "reasonably available" when the Supreme Court decision establishing that claim: (1) explicitly overrules precedent; (2) overturns longstanding and widespread practice to which the Court has not spoken "but which a near-unanimous body of lower court authority has expressly approved;" or (3) disapproves a practice the Court "arguably had sanctioned in prior cases." Id. at 17, 104 S.Ct. 2901.
Brown's present claim—that his conviction was unconstitutional because the residual clause is unconstitutionally vague—was not available to him at the time that he was convicted and sentenced. The Supreme Court only announced Davis , which gives rise to Brown's claim, earlier this year. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), on whose logic Davis is based, see Davis , 139 S.Ct. at 2326-27 & n.4, explicitly overruled two prior Supreme Court decisions. Prior to Johnson , an overwhelming body of lower court authority foreclosed void-for-vagueness challenges. See United States v. Nguyen , No. 16-cv-03543, 2018 WL 3972271, at *17 (N.D. Cal. Aug. 20, 2018) (collecting cases). The Ninth Circuit itself had explicitly rejected void-for-vagueness arguments at the time of Brown's conviction. See United States v. Sorenson , 914 F.2d 173, 175 (9th Cir. 1990). Brown had every reason to believe that, had he brought his present claim at the time he was convicted and sentenced, it would have been promptly rejected. Thus, cause exists for Brown's failure directly to appeal his claims.
While the government is correct that other petitioners had raised void-for-vagueness arguments at the time of Brown's conviction, it fails to mention that both Supreme Court precedent and "a solid wall of circuit authority" had rejected such petitions. Nguyen , 2018 WL 3972271, at *17.
To establish prejudice, a defendant must demonstrate "not merely that the errors...created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." United States v. Frady , 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). He must show a "reasonable probability" that, absent the error, the result of the proceedings would have been different. Strickler v. Greene , 527 U.S. 263, 289, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Brown has shown that he could not have been convicted for violating 18 U.S.C. § 924(c) absent that statute's unconstitutionally vague residual clause; as discussed above, he did not admit sufficient facts to predicate that conviction on a drug trafficking charge. If he were not convicted on that count, he also would not have been sentenced to the five-year consecutive mandatory minimum term. There is more than a "reasonable probability" that the proceedings would have ended differently had the residual clause been held unconstitutionally vague at the time of Brown's conviction and sentencing. See also Nguyen , 2018 WL 3972271 (applying the same logic in another case where defendant's 18 U.S.C. § 924(c) conviction was predicated on a conspiracy to commit robbery). As every judge in this District to have considered the issue has concluded, a defendant's default of his challenge to the constitutionality of 18 U.S.C. § 924(c)'s residual clause is excused by cause and prejudice. See Defendant's Reply, ECF No. 148, at 6 (collecting cases). Brown's failure to raise his present arguments on direct appeal is therefore excused.
The government's alternative procedural argument—that the collateral-attack waiver in Brown's plea agreement bars this petition—also fails. The government agrees that a collateral-attack waiver cannot be enforced to uphold an illegal sentence, citing United States v. Bibler , 495 F.3d 621, 624 (9th Cir. 2007). When a residual clause is unconstitutionally vague, any sentence imposed under that clause is illegal. See United States v. Torres , 828 F.3d 1113, 1135 (9th Cir. 2016) (citing Bibler ). Sixty months of Brown's sentence was imposed under 18 U.S.C. § 924(c)'s unconstitutionally vague mandatory minimum, i.e. illegally. "[T]he Constitution imposes a floor below which a defendant's plea, conviction, and sentencing may not fall." Id. at 1124–25. Thus, as this court has found in prior similar cases, Brown's collateral-attack waiver is overcome. See, e.g. , United States v. Johnson , No. 12-cr-00628, 2016 WL 6681184, at *2 (N.D. Cal. Nov. 3, 2016).
V. CONCLUSION
Brown's conviction and sentence under 18 U.S.C. § 924(c) cannot stand in light of Davis. The court has discretion to issue whatever remedy is "appropriate" under the circumstances. 18 U.S.C. § 2255(b) ; Troiano v. United States , 918 F.3d 1082, 1085 (9th Cir. 2019), cert. denied ––– U.S. ––––, 139 S.Ct. 2729, 204 L.Ed.2d 1121 (2019) (applying abuse of discretion standard to district court's choice of remedy under § 2255 ). Given the straightforward nature of correcting Brown's conviction and sentence—his 18 U.S.C. § 924(c) conviction and sentence can be corrected while leaving the 18 U.S.C. § 1951(a) count intact—there is no need to hold a resentencing hearing. Thus, Brown's 18 U.S.C. § 924(c) conviction and sentence are vacated. As he has already served his 51-month custodial sentence on the 18 U.S.C. § 1951(a) count, he must be released forthwith from the custody of the Bureau of Prisons.