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In Kilgore, the court rejected an argument identical to the present one from the Government, finding that the petitioner had a Johnson claim even if his arguments relied on earlier cases.
Summary of this case from Lee v. United StatesOpinion
CASE NO. C16-0995RSM
12-09-2016
MARTINEZ LEE KILGORE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER GRANTING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255
I. INTRODUCTION
Before the Court is Petitioner's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. Dkt. #1. Petitioner Martinez Lee Kilgore challenges the 156-month sentence imposed on him by this Court following his conviction for Possession of Cocaine Base with Intent to Distribute, in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(A)(iii). Id. at 1. Petitioner challenges his sentence on the basis that the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015) (cited by the Government as Johnson II), applies retroactively to his case and requires that the Court resentence him under a different Guideline range calculation. After full consideration of the record, and for the reasons set forth below, the Court GRANTS Mr. Kilgore's § 2255 motion.
II. BACKGROUND
On March 28, 2007, Mr. Kilgore entered a plea agreement to plead guilty to the charge of Possession of Cocaine Base with Intent to Distribute in violation of 21 U.S.C. §§841(a)(1) and 841(b)(1)(A)(iii). Case No. 2:07-CR-00112-RSM, Dkts. #15 and #17. Mr. Kilgore's sentencing took place on June 29, 2007. Case No. 2:07-CR-00112-RSM, Dkt. #24. The defense requested 156 months. Case No. 2:07-CR-00112-RSM, Dkt. #21 at 1. The Probation Office calculated Mr. Kilgore's sentencing guideline at 262 to 327 months. Id. at 2. The Government initially requested the same, 262 to 327 months. Case No. 2:07-CR-00112-RSM, Dkt. #19 at 1. At sentencing, the Government informed the Court that the parties had agreed to a sentence of 156 months. Case No. 2:07-CR-00112-RSM, Dkt. #43 at 5. The Government stated that "whether or not he was going to be a career offender.... was all part of the process that myself and counsel undertook in negotiating this case." Id. at 4-5. The sentencing briefing submitted by the Government and Mr. Kilgore indicate that they considered the following crimes as influencing whether or not Mr. Kilgore could qualify to be a career offender:
| Cause Number | Crime | Date of Crime | Date of Sentence | Sentence |
|---|---|---|---|---|
| 95-1-03681-0 | VUCSA -Poss. Cocaine | 9/1/94 | 8/11/95 | 15 days |
| 96-C-07539-2 | Robbery - 1stDegree | 8/22/96 | 3/07/97 | 126 months |
| 96-1-07188-5 | Assault - 2ndDegreeResidentialBurglaryRecklessEndangerment | 10/23/96 | 3/06/97 | 29 months20 months48 months |
The Government noted in their Sentencing Memorandum that "[s]ince the offense involved greater than 50 grams of cocaine base it carried a mandatory minimum term of imprisonment of 120 months (10 years) that could have been enhanced to 240 months (20 years) with the filing of a special information alleging Mr. Kilgore's prior drug conviction." Case No. 2:07-CR-00112-RSM, Dkt. #19 at 3 n.2.
On June 24, 2016, based on the U.S. Supreme Court decisions in Johnson, supra, and Welch v. United States, ___ U.S., ___, 136 S. Ct. 1257 (2016), Mr. Kilgore filed the instant motion. Dkt. #1.
III. DISCUSSION
A. Legal Standard
A motion under 28 U.S.C. § 2255 permits a federal prisoner in custody to collaterally challenge his sentence on the grounds that it was imposed in violation of the Constitution or laws of the United States, or that the Court lacked jurisdiction to impose the sentence or that the sentence exceeded the maximum authorized by law. A petitioner seeking relief under § 2255 must file his motion with the one-year statute of limitations set forth in § 2255(f). That section provides, inter alia, that a motion is timely if it is filed within one year of the underlying judgment or "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." § 2255(f).
B. Mr. Kilgore's Motion
As noted above, Petitioner's motion to vacate cites the Supreme Court's decision in Johnson v. United States, supra. In Johnson, the Supreme Court ruled on a section of the Armed Career Criminal Act ("ACCA") known as the "residual clause," which provided a definition of "violent felony." Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces a mandatory minimum sentence of 15 years if he has three prior convictions for "violent felonies." 18 U.S.C. § 924(e)(1). The ACCA residual clause provided that a violent felony was one that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). In Johnson, the Supreme Court held that this clause was "unconstitutionally vague." 135 S. Ct. at 2557. In doing so, the Court necessarily found the clause "vague in all its applications," id. at 2561, and concluded that "[i]ncreasing a defendant's sentence under the clause denies due process of law," id. at 2557. Subsequently, in Welch v. United States, the Court held that Johnson applies retroactively to defendants whose sentences were enhanced under the ACCA's residual clause. 136 S. Ct. at 1265.
In the instant matter, Petitioner was not sentenced as a career offender under the ACCA. Rather, he was sentenced under the United States Sentencing Guidelines ("USSG" or "Guidelines"). In addition to other factors, USSG § 4B1.1(a) provides that a "defendant is a career offender if... the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense" and the "instant offense of conviction is a felony that is... a controlled substance offense." USSG § 4B1.2(a) defines "crime of violence" as "any offense under federal or state 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 of another, or (2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious risk of physical injury to another." USSG § 4B1.2(a)(1) is often referred to as the "elements clause" or the "force clause." Burglary, arson, extortion, and explosives offenses, if they fit the definition of the federal generic crime, are considered the "enumerated offenses." The last clause of § 4B1.2(a)(2) is often referred to as the "residual clause."
The Guidelines include in its definition of "crime of violence" a sentence identical to the ACCA residual clause. See USSG § 4B1.2(a)(2) (providing that a "crime of violence means any offense...[that] otherwise involves conduct that presents a serious potential risk of physical injury to another"); see also United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013) (holding that the Ninth Circuit makes "no distinction between the terms 'violent felony' [as defined in the ACCA] and 'crime of violence' [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clause[s]"). Thus, Petitioner now moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that it was unconstitutional under Johnson and Welch, and that his sentence is no longer appropriate. In response, the Government argues that Petitioner waived his ability to collaterally attack his sentence, that Petitioner's claim is untimely or otherwise procedurally barred, that the Johnson holding does not apply retroactively to Guidelines sentences, and that even if Petitioner had a valid Johnson claim, it is without merit because he cannot prove the Court relied on USSG § 4B1.2's residual clause to find his convictions were a qualifying Career Offender predicates. Dkt. #9 at 4-5.
C. Retroactivity of Johnson to Guidelines Cases
As an initial matter, this Court has previously rejected the Government's nearly identical retroactivity and applicability arguments in at least one prior Johnson case. See Parker, Case No. C16-0534RSM, Dkt. #21 at 5-12. In Parker, the Court concluded that Reina-Rodriguez v. United States, 655 F.3d 1182 (9th Cir. 2011) "provides strong support for concluding that the rule is to be treated as substantive regardless of the context" and that "even in a Guidelines challenge, the rule is substantive and Teague's retroactively bar does not apply." Id. at 12 (referring to Teague v. Lane, 489 U. S 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989)). The Court will not deviate from that prior ruling, and concludes that Johnson's holding applies retroactively to Guidelines sentences including the one imposed in the instant matter.
D. Timeliness and Procedural Bars
The Government argues that Petitioner's motion is untimely because it was filed more than one year after judgment and because Petitioner's arguments are not based on Johnson but on other prior cases, including Descamps v. United States, 133 S. Ct. 2276 (2013). Dkt. #9 at 7-8. The Government further argues that Petitioner failed to dispute at sentencing that his prior convictions satisfied USSG § 4B1.2's definition of a crime of violence, and that this renders Petitioner's current claims procedurally defaulted unless he can "show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." Dkt. #9 at 17 (citing United States v. Frady, 456 U.S. 152, 168 (1982)).
On Reply, Petitioner states plainly that he "is not making affirmative claims based on Descamps or other non-Johnson cases." Dkt. #10 at 4 n.1. Petitioner argues that even if the Court finds procedural default, it does not foreclose relief because Petitioner can show cause and actual prejudice. Id. at 3. Petitioner argues that the "cause" prong is satisfied when the legal basis of a claim is unavailable to a petitioner at the time of the filing of the direct appeal. Id. (citing Murray v. Carrier, 477 U.S. 478, 488 (1986); Reed v. Ross, 468 U.S. 1, 15 (1984)). Petitioner argues that prior to the change in law brought about by Johnson, his current void-for-vagueness claim was not reasonably available to him. Id. (citing Reed, 468 U.S. at 17). Petitioner argues that the Government "does not contest prejudice, the second prong of test excusing procedural default." Id. at 4 (citing Dkt. #9 at 17). Petitioner argues that his new Guideline range, without the Career Offender status, would be substantially lower than the range presented at sentencing. Id. at 5.
The Court agrees with Petitioner that his Johnson claim was not previously reasonably available to him and that it resulted in actual prejudice. Accordingly, Petitioner has overcome the procedural bar set forth by the Government. The Court further finds that Petitioner's Motion is not untimely because it relies on the new substantive rule announced in Johnson and because it was filed within the one-year time limit for that case.
The Court notes the supplemental briefing from the Parties regarding this Court's decision in Williams v. United States, C16-0939RSM, Dkt. #12 (Oct. 11, 2016). See Dkts. #11 and #12. The Court agrees with Petitioner that this case is factually and legally distinct from Williams. In Williams, the petitioner's sole argument that his sentencing was predicated on Johnson error was that, given the presence of the residual clause, he had no reason to challenge his predicates, which he argued are not crimes of violence under current law. The record in this matter shows that the parties and the Court actually relied on the residual clause in determining an appropriate sentence. Furthermore, Petitioner in this matter has cited different, on-point case law to convince the Court to grant this Motion. --------
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E. Waiver via Plea Agreement
Petitioner's Motion acknowledges that his plea agreement contained a waiver of the right of collateral review, but argues that "a prospective waiver of the right of collateral review in a plea agreement is invalid where the district court imposes an 'illegal sentence,' defined as a sentence that 'exceeds the permissible statutory penalty for the crime or violates the Constitution.'" Dkt #1 at 24 (citing United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007); Gilbert v. United States, Case No. C15-1855-JCC, Dkt. # 19 (June 23, 2016) (citing Bibler and concluding that waiver was invalid because Gilbert's sentence was illegal under Johnson.")). Petitioner argues that his sentence was calculated on the basis of two prior crimes of violence in violation of his due process rights under the Fifth Amendment, and thus the collateral appeal waiver cannot be enforced. Id.
In Response, the Government states that "[i]nsofar as Kilgore is raising a genuine constitutional claim under Johnson II, the government agrees it is not barred by his collateral review waiver." Dkt. #9 at 16-17. The Government states that "a claim alleging a Johnson II error occurred at sentencing survives this waiver under the unconstitutional/illegal sentence exception to such waivers." Id. at 17 (citing United States v. Torres, ___ F.3d ___, 2016 WL 3770517, at *9 (9th Cir. July 14, 2016)). The Government contends, however, that Petitioner is not raising a genuine Johnson claim, but rather overbreadth and divisibility arguments based on prior case law.
Because the Court concludes that Petitioner raises a valid constitutional claim under Johnson rather than prior law, the Government's arguments for waiver via plea agreement are moot.
F. The Merits of the Petition
Petitioner begins by noting that the Government Sentencing Memorandum states that Mr. Kilgore qualified as a career offender based on only two prior convictions—robbery in the first degree and assault in the second degree. Dkt. #1 at 2. Petitioner argues that his first degree robbery conviction does not qualify as a crime of violence because it is not an enumerated offense and it does not fall within the terms of the force clause. Id. at 9. Specifically, Petitioner argues that "a violation of the robbery statute does not require violent force," that "Washington robbery criminalizes the taking of property by fear of injury or constructive force," and that the Washington robbery statute "allows the force element to be met by fear of injury to property rather than injury to a person." Id. at 10. Petitioner argues that \ federal district courts in the Washington have already held that Washington first degree robbery is not a violent felony. Id. at 9-10 (citing United States v. Packer, 2016 WL 1253870, at *4 (E.D. Wash. Mar. 8, 2016); United States v. Ellingsworth, No. CR09-6055-WFN, 2016 WL 1253821, at *4 (E.D. Wash. Mar. 8, 2016); United States v. Navarro, No. CR10-2104-RMP, 2016 WL 1253830, at *6 (E.D. Wash. Mar. 10, 2016); United States v. Perryman, Case No. CR15-241-RSL (W.D. Wash. June 10, 2016)). Petitioner argues that his Second Degree Assault conviction does not qualify as a crime of violence because the applicable state statute is overbroad, indivisible, and can be violated in a way that does not qualify under the force clause. Id. at 14-16 (citing cases). Petitioner argues that his state residential burglary conviction does not qualify under the enumerated clause because it is not a categorical match for generic burglary. Id. at 17-18 (citing cases). Petitioner argues that Washington residential burglary is not a crime of violence under the force clause because the statute contains no force element at all. Id. at 18.
The Government argues that, even if the Court were to conclude that Petitioner's arguments based on Johnson were not time-barred and procedurally defaulted, and also that Johnson applied retroactively in the present context, Petitioner's motion would still fail on the merits "because Kilgore cannot show the Court relied on USSG § 4B1.2(a)(2)'s residual clause to find that his convictions qualified as a crimes of violence." Dkt. #9 at 32. The Government argues that Petitioner must show that the Court "relied exclusively" on the residual clause in ruling that his convictions were crimes of violence. Id. at 33 (citing Stanley v. United States, ___ F.3d___, 2016WL3524183, at *2-3 (7th Cir. June, 27, 2016); In re Hines, 825 F.3d 1297, 2016WL3342668, *5 (11th Cir. June 15, 2016)). The Government next argues that Petitioner's Washington convictions for robbery and second degree assault nonetheless qualify as crimes of violence. Id. The Government relies on the offenses listed in Application Note 1 of the Commentary to the Guideline, which includes robbery, to argue that robbery is an "enumerated offense." Id. at 39-40. The Government argues that the assault conviction "categorically qualifies" under the elements clause. Id. at 32. The government goes on to argue that Petitioner was specifically charged with "intentionally assault[ing] [M.S.] with a firearm and deadly weapon, to wit; a handgun," with specific reference to part of the statute dealing with assault with a deadly weapon, RCW 9A.36.021(1)(c). Id. at 49 (citing the Amended Information from the prior state court criminal case). Finally, the Government argues that even if these crimes did not qualify as crimes of violence, Petitioner cannot establish any prejudice from the unconstitutional sentencing because the Court did not rely on the Career Offender provision in accepting the Rule 11(c)(1)(C) plea agreement and because Petitioner "would still be obligated under the plea agreement to recommend a 156-month sentence" and any error would be harmless because he is still bound by the terms of the plea agreement. Id. at 33.
On Reply, Petitioner argues that once he has shown that the unconstitutional residual clause infected the analysis of the sentencing, the government had the burden of showing that the constitutional error was harmless on the basis that his "convictions nonetheless qualify under one of the two remaining clauses (force and enumerated) of § 4B1.2." Dkt. #10 at 14. Petitioner argues that he does not have the burden of demonstrating that the Court relied exclusively on the residual clause, as asserted by the Government. Id. (citing, inter alia, Fugitt v. United States, No. C16-5423-RBL, Dkt. #12 at 8 (W.D. Wash. Sept. 26, 2016); United States v. Ellingsworth, No. 2:09-CR-6055-WFN-1, 2016 WL 1253821, at *2 (E.D. Wash. Mar. 8, 2016)). Petitioner argues that "constitutional error directly infected Mr. Kilgore's sentencing because the Court imposed its crime-of-violence enhancements in a legal climate where Washington robbery and assault predicates clearly qualified as crimes of violence under the residual clause and did not qualify under other clauses." Id. at 16. Petitioner argues that "[t]he demand for a record showing this Court's explicit verbal reliance on the residual clause would also impose an arbitrary and unjust condition for relief." Id. Petitioner next addresses the two predicate crimes. Petitioner argues that "[d]espite the government's assertion, the robbery conviction is not an enumerated offense.... because the commentary to § 4B1.2 does not supplement the exclusive definition of a crime of violence in the text of § 4B1.2(a); rather, it provides 'application notes' interpreting the text of § 4B1.2(a)—including the now-unconstitutional residual clause invalidated by Johnson." Id. at 19. Petitioner argues that the Guidelines commentary "does not have freestanding definitional power" and only has force insofar as it interprets or explains a Guideline's text. Id. at 20 (citing, inter alia, United States v. Landa, 642 F.3d 833, 836 (9th Cir. 2011)). Petitioner points out that the reference to robbery in the commentary does not explain or interpret the four offenses enumerated in the text of § 4B1.2 because those are separate crimes. Petitioner argues that the assault and burglary convictions "may only serve as one prior crime of violence because they are not counted separately pursuant to U.S.S.G. §§ 4B1.2(c)(2) and 4A1.2(a)(2)(B)" and that "other courts have held that Washington first degree burglary does not serve as a prior crime of violence." Id. at 25 n.11 (citing United States v. Rios, 2016 WL 4472996 (E.D. Wash. Aug. 12, 2016)). Petitioner argues that there was actual prejudice because his 156 month sentence based on a Guideline range of 262 to 327 months is significantly higher than the available recalculated Guideline range without the Career Offender enhancement; Petitioner even argues he could be eligible upon resentencing for immediate release. Id. at 5. Petitioner fails to address the Government's arguments as to Petitioner being bound to recommend a 156-month sentence by the plea agreement.
The Court finds that, although the Court did not explicitly address at sentencing whether the robbery, assault, or burglary predicates qualified as crimes of violence under the residual clause, the Court cannot see how the robbery or assault convictions as presented to the Court could have qualified under the elements or enumerated clauses given the case law cited by the parties. Petitioner is correct that robbery is not contained in the enumerated clause and that the application notes are interpreting the now-unconstitutional residual clause. Petitioner's robbery conviction cannot qualify under the elements clause because a violation of the robbery statute at issue does not require violent force. See Packer, Ellingsworth, Navarro, and Perryman, supra. From a review of the record, the Court finds that the second degree assault conviction was presented as just that to the court, without reference to the facts of that crime, or that Petitioner was charged under the assault with a deadly weapon subsection. Second degree assault cannot qualify as a crime of violence without reliance on the residual clause for the reasons stated by Petitioner. The Court finds that with the robbery and assault no longer qualifying as predicate crimes of violence, the Court would not have been able to rely on the Career Offender statute to accept the sentence agreed to under the plea agreement in this case, that this has caused actual prejudice by increasing the guidelines sentencing range available to and relied on by the Parties in reaching the plea agreement, and that the error was not harmless. Accordingly, the Court finds that Petitioner's sentence was imposed in violation of the Constitution and he is entitled to habeas relief under § 2255.
IV. CONCLUSION
Having considered Petitioner's motion, Respondent's answer thereto, and the remainder of the record, the Court hereby finds and ORDERS:
1. Petitioner's Motion to Vacate or Correct Sentence under § 2255 (Dkt. #1) is GRANTED.
2. The Court VACATES and sets aside the Judgment in Case No. CR07-112RSM.
3. The Court will resentence Petitioner, permit him to submit objections to his Presentence Report pursuant to Federal Rule of Criminal Procedure 32(i)(1)(D), and allow both sides to argue for an appropriate and lawful sentence, at a date to be scheduled by the Court.
4. The parties shall contact the Court's In-Court Deputies with their recommendations and availability for an appropriate sentencing date for the Court's consideration.
5. The Clerk of the Court is directed to forward a copy of this Order to Petitioner and all counsel of record.
DATED this 9th day of December 2016.
/s/_________
RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE