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United States v. Booker

United States District Court, District of Columbia

March 2, 2017

UNITED STATES OF AMERICA,
v.
CHARLES BOOKER, Defendant. Criminal Action No. 04-0049 (PLF)

          OPINION AND ORDER

          PAUL L. FRIEDMAN, United States District Judge

         The matter before the Court is defendant Charles Booker's motion to vacate his sentence under 28 U.S.C. § 2255. Booker asks this Court to vacate his sentence in light of the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). Upon consideration of the parties' briefs and the relevant legal authorities, the Court will grant Booker's motion and schedule a resentencing.[1]

         I. FACTUAL AND PROCEDURAL BACKGROUND

         In 2004, a jury convicted Booker of: (1) unlawful distribution of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (“Count 1”); (2) unlawful possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C) (“Count 2”); (3) use of a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (“Count 3”); and (4) possession of a firearm by a prior convicted felon, in violation of 18 U.S.C. § 922(g) (“Count 4”). Judgment at 1 (Nov. 2, 2004) [Dkt. 63]. At sentencing, Judge Ricardo Urbina adopted the findings and conclusions in the presentence investigation report (“PSR”) that Booker was an armed career criminal under the Armed Career Criminal Act (“ACCA”) and a career offender under the U.S. Sentencing Guidelines (“U.S.S.G.”) § 4B1.2 (“career offender provision”). Sentencing Tr. at 14 (Oct. 26, 2004) [Dkt. 69].

         Under ACCA, a defendant convicted of a violation of 18 U.S.C. § 922(g) is subject to a mandatory minimum of 15 years if the sentencing court determines that the defendant has three prior convictions for a violent felony or a serious drug offense. 18 U.S.C. § 924(e)(1). Under the career offender provision of the Sentencing Guidelines, the sentencing court must increase the base offense level of a defendant convicted of a felony crime of violence or a felony controlled substance offense if the court finds that the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. U.S.S.G. §§ 4B1.1(a), 4B1.2. Neither Judge Urbina nor the Probation Office in the PSR identified which prior convictions they relied upon to increase Booker's sentence under ACCA or the career offender provision. The PSR lists Booker's relevant prior felony convictions as: (1) attempted robbery in the District of Columbia, (2) second-degree assault in Maryland, and (3) possession with intent to distribute cocaine in the District of Columbia.

         In 2004, under the then-mandatory Sentencing Guidelines, Judge Urbina initially sentenced Booker to 35 years' imprisonment, applying an offense level increase for a career offender under U.S.S.G. § 4B1.2 and a 15-year mandatory minimum on Count 4, the Section 922(g) count, as required by ACCA. Judgment at 2; Sentencing Tr. at 14-15. Judge Urbina imposed a sentence of 240 months on Count 1, 240 months on Count 2, 360 months on Count 4 - all to run concurrently - and 5 years on Count 3 (the consecutive mandatory minimum required by 18 U.S.C. § 924(c)). Booker appealed his conviction and sentence to the U.S. Court of Appeals for the District of Columbia Circuit, which vacated his sentence in light of the Supreme Court's holding in United States v. Freddie Booker, 543 U.S. 220 (2005), that the Sentencing Guidelines are advisory. See United States v. Booker, 436 F.3d 238, 243, 246 (D.C. Cir. 2006).

         On remand and without a hearing, Judge Urbina imposed an aggregate 30-year sentence: 120 months on Counts 1 and 2, to run concurrently; 180 months on Count 4 under ACCA, to run consecutively to Counts 1 and 2; and the mandatory minimum 5 years on Count 3, to run consecutively to all other counts. Memorandum Order at 2 (Apr. 25, 2006) [Dkt. 74]; Amended Judgment at 2 (Apr. 25, 2006) [Dkt. 75]. Judge Urbina also imposed three years of supervised release on Counts 1, 2, and 4, and five years of supervised release on Count 3, all of which were to run concurrently. Amended Judgment at 3. At Booker's request, Judge Urbina subsequently held a resentencing hearing where he determined that 30 years was a “totally appropriate sentence” in light of Booker's status as a career offender, his criminal history, and other relevant factors. Resentencing Tr. at 7-8 (Jan. 9, 2007) [Dkt. 105]. He intended the sentence to be “less harsh than [he] felt was dictated by the sentencing guidelines, but which was nevertheless appropriate in light of the totality of the circumstances.” Id. at 6.

         Booker filed this Section 2255 motion in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, made retroactive by Welch v. United States, 136 S.Ct. 1257. Prior to Johnson, ACCA defined a violent felony as any felony that: (1) has as an element the use, attempted use, or threatened use of physical force against the person of another; (2) is burglary, arson, or extortion, [or] involves use of explosives; or (3) otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). These are known respectively as the “elements clause, ” the “enumerated clause, ” and the “residual clause.” See Welch v. United States, 136 S.Ct. at 1261; United States v. Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016). In Johnson, the Supreme Court held that ACCA's residual clause is unconstitutionally vague and violates due process. 135 S.Ct. at 2557, 2563. The following year, the Supreme Court determined that the holding in Johnson announced a new, substantive constitutional rule that applied retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. at 1264-65. Because the residual clause of U.S.S.G. § 4B1.2 is identical to the residual clause of ACCA, the D.C. Circuit has held that the residual clause of Section 4B1.2 is also void for vagueness. United States v. Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016). The Supreme Court subsequently granted certiorari in Beckles v. United States to resolve a circuit split over whether the residual clause of U.S.S.G. § 4B1.2 is void for vagueness and, if so, whether such a rule should be applied retroactively to reach cases on collateral review. See 616 Fed. App'x 415 (11th Cir. 2015), cert. granted, 136 S.Ct. 2510 (2016).

         On June 3, 2016, Booker filed a pro se Section 2255 motion. See Motion to Vacate. Because this is the second Section 2255 motion that Booker has filed, he was required to seek authorization from the D.C. Circuit to file a second or successive petition. See 28 U.S.C. § 2255(h).[2] The D.C. Circuit determined that Booker had made “a prima facie showing that his claims rely on a new, previously unavailable rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, ” and granted his petition for leave to file a second or successive Section 2255 motion in light of Johnson. Order, No. 16-3018 at 1 (June 10, 2016) [Dkt. 107]. Now represented by the Federal Public Defender for the District of Columbia, Booker filed a supplemental motion to vacate his sentence on October 26, 2016.

         II. DISCUSSION

         A federal prisoner may file a motion to vacate, set aside, or correct a sentence that was imposed “in violation of the Constitution or laws of the United States . . . or was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Booker argues that after Johnson, he no longer qualifies as an armed career criminal under ACCA or as a career offender under U.S.S.G. § 4B1.2. Supp. Motion at 1. The government agrees that Booker no longer qualifies as an armed career criminal under ACCA, but it argues that he has not shown that his sentence was increased under the residual clause of ACCA that the Supreme Court found unconstitutional in Johnson. United States' Response at 16-18.[3] Before reaching the merits of Booker's motion, the Court will consider this argument, the statutory procedural requirements, and procedural default.

         A. Statutory Procedural Requirements

         According to the government, Booker's motion is not based on Johnson, and he therefore is not entitled to relief under 28 U.S.C. § 2255 because he cannot show that “his ACCA sentence was infected by constitutional error - i.e., that the sentencing court relied on the residual clause of the ACCA struck down” in Johnson. United States' Response at 16. The government is correct that the record is unclear as to whether Judge Urbina relied on the elements clause or the residual clause in finding that Booker was an armed career criminal, but this is neither unsurprising nor fatal. First, judges are not required by law to state at sentencing whether they are relying on the residual clause or the elements clause. See In re Chance, 831 F.3d 1335, 1340 (11th Cir. 2016); Shabazz v. United States, No. 3:16-cv-1083 (SRU), 2017 WL 27394, at *5 (D. Conn. Jan. 3, 2017). Second, there was no practical reason for judges to make this distinction at sentencing prior to June 26, 2015, when the Supreme Court decided that the residual clause was void for vagueness. See Shabazz v. United States, 2017 WL 27394, at *5; Diaz v. United States, No. 1:16-cv-0323-MAT, No. 1:11-cr-0381-MAT, 2016 WL 4524785, at *5 (W.D.N.Y. Aug. 30, 2016). Prior convictions that were not violent felonies under the elements clause often fell under the residual clause. See United States v. Redrick, 841 F.3d at 480 (“The residual clause, as is apparent, sweeps very broadly . . . .”).

         Two panels of the Eleventh Circuit have suggested that a defendant raising the Johnson career criminal challenge on collateral attack must show that the sentencing judge relied on the residual clause. See In re Hires, 825 F.3d 1297, 1299 (11th Cir. 2016); In re Moore, 830 F.3d 1268, 1273 (11th Cir. 2016). A subsequent panel of the Eleventh Circuit and numerous district courts, however, have rejected that same argument - and for good reason. See In re Chance, 831 F.3d at 1340-41; United States v. Britto, No. 04-CR-143-TCK, 2017 WL 515007, at *1-2 (N.D. Okla. Feb. 8, 2017); United States v. Mims, Nos. ...


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