Opinion
Case No. CR 09-939-GW-51 Case No. CV 16-4412-GW
10-24-2016
U.S.A. v. David Shumilo
CRIMINAL MINUTES - GENERAL
Present: The Honorable GEORGE H. WU, UNITED STATES DISTRICT JUDGE Interpreter NONE Javier Gonzalez
Deputy Clerk Katie Thibodeaux
Court Reporter/Recorder, Tape No. Christopher M. Brunwin
Assistant U.S. Attorney
| U.S.A. v. Defendant(s): | Present | Cust. | Bond | Attorneys for Defendants: | Present | App. | Ret. |
|---|---|---|---|---|---|---|---|
| David Shumilo | not | v | Brianna F. Mircheff, DFPD | v | v |
Proceedings: PETITIONER'S MOTION STAYING RULING ON MOTION TO VACATE [13]
The Court' Tentative Ruling is circulated and attached hereto. Court and counsel confer. Based on the Tentative, and for reasons stated on the record, Petitioner's Motion Staying Ruling [13], and Motion to Vacate, Set Aside, or Correct Sentence [1], are GRANTED. The Court sets a Status Conference re Resentencing for November 7, 2016 at 8:00 a.m. Counsel for Petitioner will file applications regarding appointment of CJA counsel and referring Defendant to the Probation Office for an investigation and report as soon as conveniently possible.
__________ : 03
Initials of Deputy Clerk JG cc: Tentative Rulings on: 1) Motion to Reconsider Staying Ruling on Motion to Vacate, and 2) Motion to Vacate, Set Aside, or Correct Sentencing Under 28 U.S.C. § 2225
I. Motion for Reconsideration
On September 30, 2016, the Court issued a Ruling on Petitioner's Motion to Vacate, Set Aside, or Correct Sentencing Under 28 U.S.C. § 2255. See Docket No. 11. Petitioner is currently serving a 71-month sentence for conspiracy to violate the Racketeer Influenced and Corrupt Organizations Act ("RICO"), in violation of 18 U.S.C. § 1962(d), and a consecutive mandatory 60-month sentence for use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c). See Mot. to Vacate Ex. C, Docket No. 1-1. Petitioner seeks to vacate his § 924(c) sentence on the grounds that it was based on a determination that his RICO conspiracy conviction was a "crime of violence" under the residual clause of § 924(c), which Petitioner claims is now unconstitutional in the wake of Johnson v. United States, 135 S.Ct. 2251 (2015). See Mot. to Vacate at 1:4-13.
In its Ruling, the Court held that Petitioner's Motion to Vacate is not barred by the collateral attack waiver in his plea agreement, is not procedurally defaulted, and is not untimely. See Ruling at 6-10. However, the Court stayed its decision on the merits of Petitioner's Motion because the Ninth Circuit is currently set to decide the issue of whether Johnson applies to § 924(c) in several cases submitted for decision, including United States v. Bengay, No. 14-10080, and United States v. Brown, No. 14-19393. Id. at 11-12. The Court noted that the Ninth Circuit has been issuing orders granting applications for permission to file a second or successive § 2255 motion raising a Johnson based challenge to a § 924(c) conviction and indicating that the district courts in those actions may wish to stay proceedings pending the Ninth Circuit's decision. Id.
At the hearing on the Motion, Petitioner argued that a stay was not appropriate in this case, and the Court thereafter set a briefing schedule for Petitioner's Motion for Reconsideration of the Stay. See Docket No. 14. Now pending before the Court is Petitioner's Motion for Reconsideration. See Mot. for Reconsideration ("Mot.") Docket No. 13. The United States has opposed the Motion, see Opp'n to Mot., Docket No. 15, to which Petitioner has replied, see Reply, Docket No. 16.
Petitioner contends that the Court should not stay its decision because it is obligated to follow the Ninth Circuit's precedent in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, Lynch v. Dimaya, ___ S.Ct. ___, 2016 WL 3232911, *1 (Sept. 29, 2016). See Mot. at 1:17-25. In Dimaya, the Ninth Circuit held that Johnson applied to the residual clause in the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1101(a)(43)(F), which is identically worded to the residual clause in § 924(c). See Dimaya, 803 F.3d at 115-116; compare 18 U.S.C. § 16(b) with 18 U.S.C. § 924(c)(3). Petitioner points out that Dimaya rejected the same arguments the United States raises in the instant case regarding the textual distinctions between the residual clause at issue in Johnson and the residual clauses in the INA and § 924(c). See Mot. at 1:17-25. Petitioner further points out that the fact that the Supreme Court recently granted certiorari in Dimaya has no effect on this Court's obligation to follow Ninth Circuit precedent unless and until the Supreme Court overrules it. See Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001) ("Binding authority must be followed unless and until overruled by a body competent to do so.").
Finally, Petitioner asserts that he faces prejudice from the Court's stay, because he has been in custody since November 19, 2009, and has thus already served 82 months of his sentence (which, with good time credit, is the equivalent of approximately a 94-month sentence). See Mot. at 6:3-11. Because Petitioner's sentence for the RICO conspiracy conviction was 71 months, if the Court vacates his § 924(c) sentence, he would be entitled to be released now. Id. In addition, should the United States appeal a grant of relief from this Court, Petitioner points out that Petitioner would be subject to conditions of release, and subject to being returned to custody to finish his sentence if the United States prevailed on the appeal. Id. at 6:21-7:6. Petitioner therefore asserts that there is no harm to the United States if the stay is lifted. Id.
The United States argues only that the Court is at its discretion to stay proceedings pending resolution of independent proceedings that bear on the case, including in habeas proceedings where the stay is not "indefinite." See Opp'n at 3:9-19.
The Court would lift the stay and move forward with these proceedings, as Petitioner has clearly established prejudice from the stay. Indeed, other courts in the Ninth Circuit have denied motions to stay cases raising Johnson claims under § 924(c) where the petitioner has established that he will suffer prejudice from the stay. See United States v. Carcamo, CR 08-0730 WHA, 2016 WL 5897735, *1 (N.D. Cal. Oct. 11, 2016) (denying motion to stay case pending the Ninth Circuit's decision in Begay and the Supreme Court's decision in Dimaya, emphasizing that "briefing should proceed on schedule without any stay in light of the fact that defendant could possibly be sentenced to time served if his 2255 motion is granted"). Given that Petitioner's Motion has already been fully briefed by the parties, the Court would resolve the merits of Petitioner's claim at this juncture.
II. Ruling on the Merits of Petitioner's Motion to Vacate
In his Motion, Petitioner contends that Johnson applies to the residual clause in § 924(c) and therefore, his RICO conspiracy conviction is no longer a crime of violence under that clause. See Mot. to Vacate ("Mot.") at 6:16-8:9, Docket No. 1. In addition, Petitioner asserts that RICO conspiracy cannot qualify as a crime of violence under the "force clause" in § 924(c). Id. at 8:12-12:10. If Petitioner's RICO conspiracy conviction is not a crime of violence, than his mandatory sentencing enhancement under § 924(c) for possessing a firearm in furtherance of a crime of violence would be illegal and he would be entitled to a resentencing.
The Court refers to 18 U.S.C. § 924(c)(3)(A) as the "force clause," and 18 U.S.C. § 924(c)(3)(B) as the "residual clause."
A. Johnson Applies to the Residual Clause in § 924(c)
Section 924(c) is a sentencing enhancement provision that provides a series of mandatory consecutive sentences for using or carrying a firearm in furtherance of a "crime of violence or drug trafficking crime." See 18 U.S.C. § 924(c). Section 924(c)(3) defines the term "crime of violence" as:
an offense that is a felony and -See 18 U.S.C. § 924(c)(3).
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(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.
The residual clause at issue in Dimaya is identical to the residual clause in 924(c). See 18 U.S.C. § 16(b); see also see also United States v. Amparo, 68 F.3d 1222, 1226 (9th Cir. 1995) (looking to Section 16(b) in interpreting Section 924(c)(3)(B), explaining that the definitions are "identical"). In Dimaya, the Ninth Circuit held that, even though § 16(b) is not identically worded to the residual clause of the ACCA, which was the statute at issue in Johnson, both clauses were "subject to the same [categorical] mode of analysis" and required courts to "decide what a 'usual or ordinary violation' of the statute entails and then determine how great a risk of injury that 'ordinary case' presents." See Dimaya, 803 F.3d at 1114-15. The Ninth Circuit thus held that the Supreme Court's reasoning in Johnson:
The statute at issue in Dimaya defines a "crime of violence" as:
(a) any offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, orSee 18 U.S.C § 16(b).
(b) any other offense that is a felony and 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.
applies with equal force to the similar statutory language and identical mode of analysis used to define a crime of violence for purposes of the INA. The result is that because of the same combination of indeterminate inquiries, § 16(b) is subject to identical unpredictability and arbitrariness as ACCA's residual clause . . . [and] shows that they are subject to the same constitutional defects and that Johnson dictates that § 16(b) be held void for vagueness . . . . As with ACCA's residual clause, the INA's crime of violence provision requires courts to inquire whether the conduct encompassed by the elements of the offense, in the ordinary case, presents a substantial risk of force. We see no reason why this aspect of Johnson would not apply here.Id. at 1115-16 (internal quotations and citations omitted). Similarly, the Seventh Circuit has held that the residual clause in § 16(b) is "materially indistinguishable from the ACCA's residual clause" and therefore is unconstitutional under the reasoning in Johnson. See United States v. Vivas-Ceja, 808 F.3d 719, 720 (7th Cir. 2015).
Following Dimaya, several district courts in the Ninth Circuit have extended Dimaya's holding to find the residual clause in § 924(c) unconstitutionally vague. See United States v. Baires -Reyes, ___ F.Supp.3d ___, 2016 WL 3163049, *4-5 (N.D. Cal. June 7, 2016); United States v. Lattanaphom, 159 F.Supp.3d 1157, 1162-1164 (E.D. Cal. 2016); United States v. Bell, 158 F.Supp.3d 906, 921-25 (N.D. Cal. 2016). These courts have acknowledged that other circuits have split on the issue, but have emphasized that the Ninth Circuit's precedent in Dimaya is "highly persuasive" in the context of the residual clause in § 924(c) and therefore compels a finding that Johnson applies. See, e.g., Baires-Reyes, 2016 WL 3163049, at *5.
Indeed, in Bell, the court explained that:
The core of the Johnson [] analysis is focused on the indeterminacy created by application of the categorical approach to the broad language of the ACCA residual clause. Under binding authority in this Circuit, the section 924(c)(3) residual clause, like
the ACCA residual clause, requires application of the categorical approach. Just like the categorical approach applied in the ACCA context—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" — the categorical approach applied in the section 924(c)(3) context is "in contrast to the circumstantial or case-by-case method that requires the district court to inquire into the facts of the particular case."Bell, 158 F.Supp.3d at 923 (quoting Johnson, 135 S.Ct. at 2557; United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993)).
The United States contends that Johnson does not apply to § 924(c) because of various textual differences between § 924(c) and the ACCA. See Opp'n at 13:4-16:25. Specifically, the United States argues that Johnson identified the "ordinary case" analysis as critical to its finding that the ACCA's residual clause created uncertainty as to how to assess the risk associated with a crime, whereas § 924(c) expressly requires courts to focus on the "risk of physical force" that may be used against the person or property of another. Id. However, this argument was expressly rejected in both Dimaya, with respect to § 16(b), and Bell, with respect to § 924(c). See Dimaya, 803 F.3d at 1117 (holding that the language of the residual clause in § 16(b) "gives judges no more guidance than does the ACCA [residual clause] as to what constitutes a substantial enough risk of force to satisfy the statute); Bell, 158 F.Supp.3d at 923 (explaining that "the differences in the language used in the ACCA residual clause versus the 924(c)(3) residual clause are not material insofar as the reasoning in Johnson").
Second, the United States contends that the ACCA's residual clause is distinguishable because it enumerates four specific felonies that qualify as crimes of violence, and then includes crimes that "otherwise involves conduct that presents a serious potential risk." Opp'n at 14:1-18. The United States points out that in Johnson, the Supreme Court emphasized that this language "forces courts to interpret 'serious potential risk' in light of the four enumerated crimes," each of which is significantly different in the degree of risk they pose. See Johnson, 135 S.Ct. at 2558. However, this argument was also expressly rejected in Dimaya and Bell. Indeed, in Dimaya, the Ninth Circuit explained that:
It is true that, after the Court set forth its holding in Johnson, it cited the provision's four enumerated offenses in responding to the government's argument that the Court's holding would cast doubt on the many criminal statutes that include language similar to the
indeterminate term "serious potential risk." In doing so, however, it stated that while the listed offenses added to the uncertainty, the fundamental reason for the Court's holding was the residual clause's application of the 'serious potential risk' standard to an idealized ordinary case of the crime. In short, this response clearly reiterated that what distinguishes ACCA's residual clause from many other provisions in criminal statutes was, consistent with its fundamental holding, the use of the "ordinary case" analysis. Johnson therefore made plain that the residual clause was void for vagueness in and of itself for the reasons stated in reaching its decision, and not because of the clause's relation to the four listed offenses.Dimaya, 903 F.3d at 1117-18 (internal quotations and citations omitted); see also Bell, 158 F.Supp.3d at 923-24 ("The government's emphasis on the four enumerated crimes preceding the ACCA residual clause was addressed in both Dimaya and Vivas-Ceja and is no more persuasive here [with respect to § 924(c)] than it was in those cases.").
The United States cites to various opinions from other circuits in support of its position that Johnson does not apply to § 924(c). See Opp'n at 15:1-16. However, given the various splits among the circuits over whether Johnson applies to § 16(b) and, separately, to § 924(c), the Court would follow the existing precedent in this circuit and find that Johnson does apply to § 924(c). Indeed, the United States has not cited to, and the Court is not aware of, any court in this circuit holding otherwise since the Ninth Circuit's decision in Dimaya.
B. RICO Conspiracy is Not a Crime of Violence under the Force Clause
The United States contends that, even if the residual clause in § 924(c) is invalid, Petitioner's conviction for RICO conspiracy remains a crime of violence under the force clause. Opp'n at 17:3-20:13.
Although Petitioner's plea agreement 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 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).
The United States takes the position that inchoate offenses such as conspiracy are crimes of violence where the object of the conspiracy is a crime of violence. Id. at 18:23-28. Thus, the United States argues that, in this case, RICO conspiracy "counts as a crime of violence under § 924(c)(3)(A) because the predicate racketeering acts here - including murder, conspiracy to commit murder, and extortion under state law - are themselves crimes of violence." Id. at 18:5-8.
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 argues that a RICO conspiracy is not categorically a crime of violence under the force clause, which classifies as a crime of violence an offense that "has as an element the use, attempted use, or threatened use of physical force," see 18 U.S.C. § 924(c)(3)(A), because RICO conspiracy does not have any of the force elements defined in that clause. See Mot. at 9:25-10:6. Indeed, as Petitioner points out, RICO conspiracy requires only that the defendant agreed to violate the RICO statute, regardless of whether the defendant or any other co-conspirator actually committed an overt act in furtherance of the conspiracy. Id. at 10:25-11:22.
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 § 924(c), 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.
Moreover, other courts have held that conspiracy to commit robbery is not a crime of violence under the force clause of § 924(c), even though robbery itself is a crime of violence, because none of the elements required to prove the conspiracy require the use, attempted use, or threatened use of force by a conspirator. See Baires-Reyes, ___ F.Supp.3d ___, 2016 WL 3163049, at *1-2 (emphasizing that "[n]one of these elements [of Hobbs Act conspiracy] requires actual, attempted, or threatened use of physical force, and a jury would not be required to find that [petitioner] used, attempted, or threatened physical force in order to convict him . . . . Thus, the force clause does not apply."); see also United States v. Gore, 636 F.3d 728, 731 (5th Cir. 2011) ("A factfinder could convict a defendant of conspiracy to commit aggravated robbery . . . without finding that physical force against the person of another was actually used or that there was an attempted or threatened use of such force."); 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 19:7-22. 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. Id. 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 19:23-20:10. 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 RICO conspiracy is not a crime of violence under the force clause of § 924(c).
C. Conclusion
In sum, the Court would find that Johnson applies to the residual clause in § 924(c), thereby invalidating it. Because Petitioner's RICO conspiracy conviction cannot be a crime of violence under the force clause, the Court would find that there is no longer a crime of violence conviction supporting Petitioner's sentencing enhancement under § 924(c). As such, Petitioner's Motion would be GRANTED and he should be resentenced accordingly.