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United States v. Butler

United States District Court, District of Columbia

May 25, 2017

UNITED STATES OF AMERICA,
v.
TARIK BUTLER, Defendant. Civil Action No. 16-1187 (CKK)

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE

         Presently before the Court are Defendant Tarik Butler's [31] Revised Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and Mr. Butler's [33] Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255. Upon a searching review of the parties' submissions, [1] the relevant authorities, and the record as a whole, the Court finds that Mr. Butler no longer qualifies for a sentencing enhancement pursuant to the Armed Career Criminal Act based on his prior criminal convictions in light of the Supreme Court of the United States' holding in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). Accordingly, the Court shall GRANT Mr. Butler's [31] Revised Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and Mr. Butler's [33] Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255, and set this matter for a resentencing.

         I. BACKGROUND

         On February 23, 2012, an indictment was filed charging Mr. Butler with unlawful distribution of 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Mr. Butler was arrested on February 28, 2012. On June 25, 2012, an information was filed charging unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e)(1). On that same day, Mr. Butler pled guilty to the sole count of the indictment, unlawful distribution of 28 grams or more of cocaine base, and the sole count of the information, unlawful possession of a firearm, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). As part of the plea agreement, Mr. Butler acknowledged that “unlawful possession of a firearm carries a penalty of imprisonment of not less than 15 years.” Plea Agmt. at 1. Further, as part of the terms of the 11(c)(1)(C) plea, the parties agreed that a 180-month (15-year) term of imprisonment was the appropriate sentence which the Court accepted.

         This matter proceeded to sentencing on October 10, 2012. At that time, a person convicted of a § 922(g) violation who also had three prior convictions for a “violent felony” or “serious drug offense” was subject to a 15-year mandatory minimum pursuant to the Armed Career Criminal Act (“ACCA”). 18 U.S.C. § 924(e)(1) (2012). Further, a “violent felony” was defined as any crime punishable by a term of imprisonment exceeding one year 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.” Id. § 924(e)(2)(B). Generally, these clauses are known respectively as the “elements clause, ”[2] the “enumerated clause, ” and the “residual clause.” United States v. Redrick, 841 F.3d 478, 480 & n.3 (D.C. Cir. 2016). Further, at the time of sentencing, United States Sentencing Guideline (“U.S.S.G.”) § 2K2.1(a)(2) provided a sentencing enhancement for a defendant who had “at least two felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 2K2.1(a)(2) (2012). Further, U.S.S.G. § 4B1.2(a) provided a sentencing enhancement for a person classified as a Career Offender, meaning a person whose present conviction was one for a “crime of violence” or “controlled substance offense, ” and had two prior felony convictions for such offenses. A “crime of violence” was defined for both guideline provisions in materially the same manner as “violent felony” discussed above. See § 2K2.1(a)(2), comment. n.1; U.S.S.G. § 4B1.2(a).

         The Court sentenced Mr. Butler to a term of imprisonment of 15 years (180 months), in accordance with the Rule 11(c)(1)(C) plea agreement, on both counts followed by a term of supervised release of 5 years (60 months). In imposing this sentence, the Court found that Mr. Butler was subject to a 15-year mandatory minimum in light of his prior convictions. Judg. in Cr. Case, Stmt. of Reasons at 1; Sent'g Hrg. Tr. (Oct. 10, 2012), at 3:10-13, ECF No. [29] (“He also pled to Count 1 of an Information, which was unlawful possession of a firearm by a felon with three convictions. And that has a statutory 15-year mandatory minimum to life with a maximum fine of $250, 000.”). Specifically, Mr. Butler had: a 1995 conviction for attempted distribution of cocaine in the District of Columbia, PSR ¶ 41, ECF No, [17]; and two 2000 convictions for assault with a dangerous weapon in the District of Columbia, id. ¶¶ 44, 45.[3] See Sent'g Hrg. Tr. (Oct. 10, 2012), at 9:1-15. As reflected in the Presentence Investigation Report, Mr. Butler was subject to a mandatory minimum term of imprisonment of 15 years pursuant to the ACCA, 18 U.S.C. § 924(e)(1). PSR ¶ 107. Further, the Court applied U.S.S.G. §§ 2K2.1(a)(2) (increased base level offense based on two prior felony convictions for a crime of violence or controlled substance offense) and 4B1.4 (Armed Career Criminal enhancement) in calculating Mr. Butler's sentencing range under the U.S.S.G. Id. ¶¶ 27, 37; Sent'g Hrg. Tr. (Oct. 10, 2012), at 5:3-6 (adopting the PSR as written). Mr. Butler did not appeal his conviction or sentence.

         On June 26, 2015, the Supreme Court of the United States (“Supreme Court”) in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), held that the residual clause of the ACCA, § 924(e)(2)(B)(ii), is unconstitutionally vague. Id. at 2563. On April 18, 2016, the Supreme Court held in Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016), that its decision in Johnson announced a substantive rule that has a retroactive effect in cases on collateral review. Id. at 1268. In light of these holdings, on June 2, 2016, Chief Judge Beryl A. Howell issued a Standing Order “appoint[ing] the Office of the Federal Public Defender for the District of Columbia to represent any defendant previously determined to have been entitled to appointment of counsel, or who is now indigent, to determine whether that defendant may qualify to seek to vacate a conviction or to seek a reduction of sentence or to present any motions to vacate a conviction and/or for reduction of sentence in accordance with Johnson and Welch.” Pursuant to the procedures set out in that Standing Order, Mr. Butler, through counsel, filed an abridged [31] Motion Under 28 U.S.C. §§ 2255 to Vacate, Set Aside, or Correct Sentence on June 24, 2016. The motion currently is pending before this Court and further briefing on this motion was made in accordance with Chief Judge Howell's Standing Orders of June 2, 2016, and September 9, 2016, and subsequent order of this Court. Mr. Butler argues that two of his prior convictions no longer qualify as violent felonies under the ACCA or crimes of violence under U.S.S.G. § 2K2.1(a)(2) in light of the Supreme Court's holding in Johnson and, as such, requests that the Court correct his sentence. See generally Def.'s Supp. Mot.

         With respect specifically to Mr. Butler's arguments regarding the applicability of certain provisions of the U.S.S.G., the Court notes that the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) extended the reasoning of Johnson to the U.S.S.G., finding that the similarly worded residual clause of U.S.S.G. § 4B1.2(b) also is unconstitutional under the void-for-vagueness doctrine. United States v. Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016). However, after briefing was complete on the instant motion, the Supreme Court in Beckles v. United States, -- U.S. --, 137 S.Ct. 886 (2017), held that the residual clause of U.S.S.G. § 4B1.2(a)(2) is not void for vagueness because the U.S.S.G. are not subject to a vagueness challenges under the due process clause. Id. at 890. The Supreme Court noted that its holding did not render the U.S.S.G. immune from constitutional scrutiny, including scrutiny under the due process clause. Id. at 895-96. Rather, the majority opinion of the Supreme Court held specifically that the void-for-vagueness doctrine was inapplicable to the advisory U.S.S.G. Id. at 896. The Supreme Court explained: “Unlike the ACCA, . . . the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range.” Id. at 892.

         Given that Beckles was decided after the instant motion was briefed, neither party has discussed the import, if any, of the Supreme Court's decision in Beckles to Mr. Butler's conviction and sentence. The Court has determined that it need not reach this issue of the applicability of the U.S.S.G. at this juncture. Rather, the Court's analysis shall focus on whether Mr. Butler's prior offenses constitute violent felonies under the ACCA. For the reasons described below, the Court finds that Mr. Butler was improperly sentenced to a mandatory minimum sentence under the ACCA and, accordingly, must be resentenced. As such, the Court shall allow the parties to make any arguments regarding the applicability of the U.S.S.G. in their memorandums in aid of sentencing prior to resentencing.

         II. LEGAL STANDARD

         Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes 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). The circumstances under which such a motion will be granted, however, are limited in light of the premium placed on the finality of judgments and the opportunities prisoners have to raise most of their objections during trial or on direct appeal. “[T]o obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). Nonetheless, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). A prisoner may not raise a claim as part of a collateral attack if that claim could have been raised on direct appeal, unless he can demonstrate either: (1) “cause” for his failure to do so and “prejudice” as a result of the alleged violation, or (2) “actual innocence” of the crime of which he was convicted. Bousley v. United States, 523 U.S. 614, 622 (1998).

         III. DISCUSSION

         A. Procedural Requirements

         The Government first argues that Mr. Butler's claims are not properly before this Court for several reasons. Generally, a criminal defendant may bring a § 2255 within one year of the date upon which his or her judgment of conviction becomes final or within one year of certain other events which essentially reset the clock on the one-year period. See generally 28 U.S.C. § 2255(f). In relevant part, section 2255 provides that a motion brought under this section may be brought within one year of “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.” Id. § 2255(f)(3). It is undisputed that the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson (2015)”) declaring the residual clause of the ACCA unconstitutional was a newly recognized right made retroactively applicable to cases on collateral review. Welch, 136 S.Ct. at 1268. It also is undisputed that Mr. Butler timely raised any claims made under Johnson (2015) pursuant to the procedures set forth in this jurisdiction by Chief Judge Howell. However, the Government asserts that Mr. Butler's claims nevertheless fail because: (1) this Court did not actually rely on the residual clause of the ACCA when sentencing Mr. Butler; (2) Mr. Butler claims are untimely because his argument does not rely on the Supreme Court's decision in Johnson (2015), but rather on an earlier-decided Supreme Court case; and (3) Mr. Butler's claim is procedurally defaulted because he has not demonstrated cause and prejudice for his failure to raise these claims on direct appeal. The Court shall address each argument in turn.

         1. This Court's Reliance on the Residual Clause at Sentencing

         First, the Government asserts that Mr. Butler has not demonstrated that this Court actually relied on the residual clause of the ACCA with respect to Mr. Butler's prior convictions. While it is true that the record in this case does not conclusively show that the Court relied on the residual clause of the ACCA rather than the elements clause at the time of sentencing, this does not bar Mr. Butler's claim. First, the Court does not accept the Government's premise that a criminal defendant must make an affirmative showing that the sentencing court relied on the residual clause rather than the alternative elements clause of the ACCA in order to assert a claim under Johnson (2015). Indeed, this Court accepts the proposition, as recognized by other district courts in this jurisdiction and courts of other jurisdictions, that it is sufficient for a criminal defendant to show that a sentencing judge might have relied on the residual clause in order to proceed. See United States v. Wilson, No. CR 96-0157 (ESH), 2017 WL 1383644, at *3 (D.D.C. Apr. 18, 2017) (Huvelle, J.) (collecting cases).

         As District Judge Paul L. Friedman recognized, to hold otherwise would create an “absurd result.” United States v. Booker, No. CR 04-0049 (PLF), 2017 WL 829094, at *4 (D.D.C. Mar. 2, 2017). At the time of Mr. Butler's sentencing, a court was not required to specify which clause it was relying on to find that the particular offenses qualified as violent felonies under the ACCA and U.S.S.G. Id. at *3. Nor is it likely that a sentencing judge would have seen the need to make such a specification several years (in this case, approximately two and a half years) before the Supreme Court declared the residual clause unconstitutional. Further, prior convictions that did not meet the requirements of the elements clause often satisfied the residual clause. Id. As such, to impose the restriction advanced by the Government, certain criminal defendants would be barred from raising an otherwise cognizable claim under Johnson (2015) because the sentencing judge did not specify which clause she was relying on at a time when that was not required and it could not have been foreseen that such a specification was necessary. As such, the Court accepts that Mr. Butler must show only that this Court may have relied on the residual clause in order to proceed.

         As a practical matter, it is clear from the record that the Court imposed the 15-year term of imprisonment as a mandatory minimum in light of the prior convictions in accepting the Rule 11(c)(1)(C) plea agreement as to the sentence. As discussed further below, the Court considered two of Mr. Butler's prior offenses as “violent felonies” under the ACCA. The Court did not specify in reaching this determination whether it was relying on the elements clause or the unconstitutional residual clause. As such, the Court has determined this is a sufficient showing in order for Mr. Butler's claims under Johnson (2015) to proceed.

         2. Timeliness of Mr. ...


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