Opinion
CV-16-3229-PHX-GMS (DMF) CR-07-00262-01-PHX-GMS
09-16-2022
United States of America, Plaintiff, v. Jimmy Presley Hodge, Defendant/Movant.
REPORT AND RECOMMENDATION
Deborah M. Fine, United States Magistrate Judge
TO THE HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:
On August 19, 2022, the Ninth Circuit Court of Appeals issued its mandate vacating the District Court's February 12, 2019, Order (Doc. 40) and Judgment (Doc. 41) denying Movant-Defendant Jimmy Presley Hodge's Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 in CV-16-03229-PHX-GMS (DMF) (Doc. 15) and remanding for further proceedings in light of United States v. Taylor, 142 S.Ct. 2015, 2025-26 (2022). (Doc. 45) Shortly thereafter, Chief District Judge Snow referred this matter to the undersigned for further proceedings in accordance with the mandate of the Ninth Circuit Court of Appeals. (Doc. 46)
The Ninth Circuit's mandate followed the parties' joint motion filed in the Ninth Circuit on July 28, 2022, in which the parties requested remand to “allow the district court to grant Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 and resentence Defendant.” (C. A. No. 19-15731, Docs. 15, 16)
Because it appeared that the parties might be in agreement regarding the disposition of these § 2255 proceedings, on August 24, 2022, the parties were ordered to file with this Court a joint proposed briefing schedule or, if appropriate, a stipulation for entry of a proposed order resolving these § 2255 proceedings. (Doc. 47) The parties timely filed a stipulation (Doc. 48), but did not file a proposed order. The parties were thereafter ordered to file an agreed upon order or proposed separate orders for disposition and entry of judgment regarding these 28 U.S.C. § 2255 proceedings. (Doc. 49) An agreed upon proposed order was timely filed. (Doc. 51)
The identical order was first erroneously filed under an attorney's CM/ECF login who is no longer counsel of record in this matter (Doc. 50).
After review, it is recommended that parties' stipulation (Doc. 48) be accepted and relief be granted as set forth below.
I. PROCEDURAL HISTORY
The parties' stipulation accurately recounts the procedural history:
On December 12, 2008, Defendant pleaded guilty to attempted Hobbs Act robbery, in violation of 18 U.S.C. § 1951 (Count 1), and use of a firearm in connection with a crime of violence causing death (Count 2), in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and (j)(1). (CR 167, 281.) On February 15, 2010, this Court sentenced Defendant to a total of 268 months in prison: 148 months on Count 1, and 120 months on Count 2, to run consecutively to Count 1. (CR 283.)
Defendant did not file a direct appeal. On June 27, 2016, Defendant filed a pro se “Motion for Time Extension to File a § 2255,” which this Court docketed as a motion to vacate, set aside, or correct his sentence under § 2255. (CR 304; CV-CR 1.) This Court subsequently appointed counsel for Defendant who filed an “amended” § 2255 motion on May 26, 2017, arguing that Defendant's § 924(c) conviction was invalid because it was predicated on attempted Hobbs Act robbery which was no longer a crime of violence. (CV-CR 15.)
On February 12, 2019, this Court denied Defendant's § 2255 motion as untimely pursuant to United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018), and declined to issue a certificate of appealabilty [ sic ]. (CV-CR 40.) Following a stay of proceedings, the Ninth Circuit Court of Appeals granted a certificate of appealability on whether Defendant's § 2255 motion was timely filed and if so, whether his § 924(c) conviction must be vacated because attempted Hobbs Act robbery no longer qualifies as a crime of violence. (C. A. No. 19-15731, Doc. 7.)
The Ninth Circuit subsequently stayed proceedings pending the outcome of a petition for writ of certiorari in United States v. Dominguez, C. A. No. 1410268, which concerned the same issue of whether attempted Hobbs Act robbery was a crime of violence under the elements clause of § 924(c). (C. A. No. 19-15731, Doc. 12.) On July 5, 2022, Defendant filed a notice of disposition of the petition for writ of certiorari in Dominguez, and asked the Ninth Circuit to lift the stay. (C. A. No. 19-15731, Doc. 13.) After the Ninth Circuit lifted the stay and set a briefing schedule, the parties filed a joint motion to remand the matter to this Court for resentencing, which the Ninth Circuit granted. (C. A. No. 19-15731, Docs. 14, 15, 16.)(Doc. 48 at 1-3)
Footnote 1 in the original text explains: “‘CR' refers to the Clerk's Record in Defendant's underlying criminal case, CR- 07-00262-PHX-GMS. ‘CV-CR' refers to the Clerk's Record in Defendant's underlying § 2255 proceeding, CV-16-03229-PHX-GMS (DMF).”
Footnote 2 in the original text states: “The petition for writ of certiorari in Dominguez was granted, the judgment vacated, and the case remanded for consideration in light of the Supreme Court's decision in United States v. Taylor, 142 S.Ct. 2015 (2022) (holding that attempted Hobbs Act robbery does not qualify as a ‘crime of violence' under § 924(c)(3)(A) because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force). Dominguez v. United States, No. 20-1000, 2022 WL 2295021 (U.S. June 27, 2022).”
II. ANALYSIS
The parties' stipulation argues:
Defendant's § 924(c) firearm conviction in Count 2 was predicated on his attempted Hobbs Act robbery conviction in Count 1. Attempted Hobbs Act robbery no longer qualifies as a crime of violence under 18 U.S.C. § 924(c). See Taylor, 145 S.Ct. at 2020- 21. Because Defendant's conviction on this basis can no longer serve as a predicate offense for Defendant's § 924(c) conviction in Count 2, Defendant is now entitled to relief under his [amended] § 2255 motion, the first such motion he has filed. Accordingly, this Court should grant Defendant's [amended] § 2255 motion and vacate his § 924(c) conviction (Count 2).
This Court should also resentence Defendant on Count 1 because the
sentencing package it fashioned-based on the mandatory consecutive term on the § 924(c) count- is now “unbundled.” “When a defendant is sentenced on multiple counts and one of them is later vacated on appeal, the sentencing package becomes ‘unbundled.'” United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000). “Such ‘unbundling' is often warranted because conviction on the reversed counts may have affected the remaining counts.” United States v. Avila-Anguiano, 609 F.3d 1046, 1049 (9th Cir. 2010) (citing United States v. McClain, 133 F.3d 1191, 1194 (9th Cir. 1998) (re-sentencing on underlying offense was proper where a § 924(c) conviction was reversed; vacation of the § 924(c) sentence unbundled the sentencing package and allowed the district court to put together a new package based on the change in circumstances)); see Dean v. United States, 137 S.Ct. 1170, 1178 (2017) (court may take consecutive § 924(c) sentence into account when selecting sentence for the predicate count); United States v. Benally, 656 Fed.Appx. 858, 860 (9th Cir. 2016) (stating that “[w]hen determining the sentence for a predicate offense, no weapon enhancement can be applied if the defendant is also convicted of using a firearm in connection with a ‘crime of violence' under § 924(c),” and holding that because the court vacated the § 924(c) conviction it “must remand to determine the effect, if any, of the firearm on the sentence for the predicate offense”). “The district court then has the authority to put together a new package reflecting its considered judgment as to the punishment the defendant deserved for the crimes of which he was still convicted.” Ruiz-Alvarado, 211 F.3d at 1184 (internal quotation marks and end citations omitted). The district court may therefore choose to impose a different sentence on Count 1, guided by a new guidelines calculation, in light of the fact that the 120-month sentence for the § 924(c) conviction is being vacated.(Id. at 3-4) The parties conclude that “[i]n light of the Supreme Court's decision in Taylor, this Court should grant Defendant's amended motion under 28 U.S.C. § 2255, vacate his § 924(c) conviction, and resentence him on Count 1 following an amended guidelines calculation.” (Id. at 4)
The parties' argument correctly analyzes the issues before the Court. Thus, relief pursuant to the parties' stipulation is warranted.
III. CONCLUSION
The parties have reached a stipulation for resolution of these proceedings (Docs. 48, 51). After review, it is recommended that the parties' stipulation (Doc. 48) be accepted and appropriate orders be entered thereon.
Accordingly, IT IS RECOMMENDED that the parties' stipulation (Doc. 48) be accepted.
IT IS FURTHER RECOMMENDED that Movant-Defendant Jimmy Presley Hodge's Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 in CV-16-03229-PHX-GMS (DMF) (Doc. 15) be granted as set forth herein.
IT IS FURTHER RECOMMENDED that Movant-Defendant's § 924(c) conviction for Count 2 in CR-07-00262-01-PHX-GMS be vacated.
IT IS FURTHER RECOMMENDED that this matter be set for resentencing on Count 1 in CR-07-00262-01-PHX-GMS.
IT IS FURTHER RECOMMENDED that the U.S. Probation Office be directed to prepare a new presentence report for the resentencing on Count 1 in CR-07-00262-01-PHX-GMS.
IT IS FURTHER RECOMMENDED that the Court's Order regarding MovantDefendant Jimmy Presley Hodge's Amended Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 in CV-16-03229-PHX-GMS (DMF) (Doc. 15) be filed in CV-16-03229-PHX-GMS and in CR-07-00262-01-PHX-GMS.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. The parties shall have fourteen days within which to file responses to any objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determination of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.