United States District Court, District of Columbia
A. HOWELL, CHIEF JUDGE
25 years ago, Navarro Hammond was sentenced to 380
months' imprisonment for possession with intent to
distribute cocaine base (or “crack”) and
marijuana, and for maintaining a premise for the distribution
of a controlled substance, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(iii), 841(b)(1)(D), and
856(a)(2). The 31-year length of Hammond's sentence
reflected his career-offender designation, pursuant to §
4B1.1 of the then-mandatory United States Sentencing
Guidelines (“Guidelines”), based on his two prior
convictions for a “crime of violence, ” as such
crimes were once defined under § 4B1.2 of the
substantial changes in federal sentencing since Hammond began
serving his 380-month sentence, he claims that if he were
sentenced today, the now-advisory Guidelines range would be
92 to 115 months' imprisonment, see Def.'s
Second Supp. Mot. Vacate at 1, ECF No. 86, and, further, that
these changes should be applied to benefit him now. Over the
last decade, Hammond filed a motion, under 18 U.S.C. §
3582, asking for a sentence reduction, see
Def.'s Mot. Modification Sentence (“Def.'s Mot.
Modify.”), ECF No. 76, and a motion, under 28 U.S.C.
§ 2255, asking that his sentence be vacated and that he
be resentenced under the current Guidelines, see
Def.'s Mot. Vacate, Set Aside, Correct Sentence, ECF No.
83, as supplemented, Def.'s Supp. Mot. Vacate
(“Def.'s Supp. § 2255 Mot.”), ECF No.
85, and Def.'s Second Supp. Mot. Vacate. Hammond's
§ 2255 motion seeks relief that, if awarded, encompasses
the relief sought under his sentence-reduction
motion. To prevail on the broader motion, Hammond
must survive the gauntlet of procedural obstacles that the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) erects and then establish his right to
relief under an especially high merits standard. Hammond has
done just that, and his § 2255 motion is granted. This
relief renders his sentence-reduction motion, under 18 U.S.C.
§ 3582, moot and that motion is denied as such.
10, 1992, Hammond was arrested in connection with an
investigation into the murder of a D.C. Corrections Officer,
see Presentence Report (“PSR”) at
¶¶ 3-5, ECF No. 96, who was “in route to D.C.
Superior Court in order to testify against” a close
associate of Hammond “in an unrelated pending matter
which occurred in a D.C. correctional facility, ”
id. at ¶ 4. This murder was “carried out
… to prevent [the officer] from testifying.”
Id. The arresting officers searched Hammond's
home and discovered 110.5 grams of marijuana, 166.6 grams of
crack, 80.773 grams of heroin, and drug paraphernalia, with
Hammond's prints on a bag of marijuana and a box of
cocaine base. Id. at ¶¶ 6-7. Hammond was
subsequently convicted, in 1993, at a jury trial on charges
of possession with intent to distribute 50 grams or more of
cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(A)(iii), possession with intent to
distribute marijuana, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(D), and maintaining a premise to
manufacture, distribute, store, and use a controlled
substance, in violation of 21 U.S.C. § 856(a)(2).
See Judgment in a Criminal Case
(“Judgment”) at 1, ECF No. 42.
Hammond's sentencing, in March 1994, the presiding judge
generally adopted “the factual findings and guideline
application in the [PSR].” Judgment, Statement of
Reasons (“SOR”), at 5, ECF No. 42. According to
his PSR, Hammond had, at that time, two prior felony
convictions for a crime of violence: a conviction, at age 17,
in the District of Columbia Superior Court for robbery, PSR
at ¶ 25; and a conviction, at age 18, in the District of
Columbia Superior Court for murder while armed, arising from
the defendant fatally shooting a robbery victim, id.
at ¶ 26. The PSR reported that those prior convictions,
in combination with Hammond's instant drug convictions,
subjected Hammond to the Guidelines' career-offender
designation, under U.S.S.G. § 4B1.1. Id. at
¶¶ 21, 31.
qualify as a “career offender, ” a defendant at
least 18 years old must face sentencing for a felony that was
“either a crime of violence or a controlled substance
offense” and have “at least two prior felony
convictions of either a crime of violence or a controlled
substance offense.” U.S.S.G. § 4B1.1(a). In 1993,
the Guidelines defined “crime of violence” in
three ways. First, under the “elements clause, ”
crimes of violence included any felony that “has as an
element the use, attempted use, or threatened use of physical
force against the person of another.” Id.
§ 4B1.2(1)(i) (1993). Second, under the
“enumerated-felonies clause, ” crimes of violence
included “burglary of a dwelling, arson, or
extortion” or a felony that “involves use of
explosives.” Id. § 4B1.2(1)(ii) (1993).
Third, under the “residual clause, ” crimes of
violence included any felony that “otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” Id. Without stating
which definition of crime of violence applied to either of
Hammond's prior convictions, the district court judge
sentenced Hammond as a career offender. Judgment, SOR, at 4.
as a career offender, Hammond's criminal history category
under the operative Guidelines was VI. U.S.S.G. § 4B1.1
(1993); see also Judgment, SOR, at 4. Additionally,
given that in 1993 the statutory maximum for a violation of
21 U.S.C. § 841(a) involving more than 50 grams of
cocaine base was life imprisonment, see Id. §
841(b)(1)(A) (1993), Hammond's offense level under the
guidelines was 37. U.S.S.G. § 4B1.1 (1993); see
also Judgment, SOR, at 4. A combined criminal history
category of VI and offense level of 37 resulted in a
Guidelines range of 360 months to life imprisonment. U.S.S.G.
Ch. 5 Pt. A (1993); see also Judgment, SOR, at 4.
time of Hammond's sentencing, Congress's instruction
that “court[s] shall impose a sentence of the kind, and
within the range, referred to [in the Guidelines], ” 18
U.S.C. § 3553(b)(1), was still effective. Thus, Hammond
was sentenced on his cocaine-base conviction to 380
months' imprisonment, to run concurrently with a 37-month
sentence on the marijuana conviction and a 240-month sentence
on the premises conviction. Judgment at 2. According to the
Bureau of Prisons, Hammond's scheduled release date for
his federal convictions is July 15, 2020. See Find
an Inmate, Federal Bureau of Prisons,
https://www.bop.gov/inmateloc/ (search “Navarro
Hammond's direct appeal, the D.C. Circuit affirmed the
convictions, rejecting several arguments about the district
court's evidentiary rulings at trial. United States
v. Hammond, 52 F.3d 1123 (table) (D.C. Cir. 1995).
filed his first § 2255 motion in June 2001. Def.'s
First Mot. Vacate, ECF No. 55. By that time, this case had
been reassigned to another judge since the original
sentencing judge was no longer serving. See Order
(Feb. 6, 2002), ECF No. 56. Hammond's motion, and a
later-filed supplement, see Def.'s Supp.
Authority, ECF No. 57, sought to correct his sentence
following Apprendi v. New Jersey, 530 U.S. 466
(2000), and Blakely v. Washington, 542 U.S. 296
(2004), which together articulated the Sixth Amendment's
guarantee that all facts, other than a prior conviction,
increasing a criminal penalty beyond a statutory maximum must
be proved to a jury beyond a reasonable doubt. See
Def.'s First Mot. Vacate at 3-15; Def.'s Supp.
Authority at 1-2. In April 2005, this § 2255 motion was
denied because neither Supreme Court decision had been made
retroactive. See Order (Apr. 26, 2005) at 1, ECF No.
65. Hammond never received a certificate of
appealability. See Order (Aug. 30, 2005), ECF No. 71
(district court denial of certificate of appealability);
Order (Mar. 20, 2008), ECF No. 75 (circuit court denial of
certificate of appealability).
before denial of Hammond's first § 2255 motion,
federal sentencing was affected by the first of several legal
shifts at the heart of this case. In January 2005, the
Supreme Court issued United States v. Booker, 543
U.S. 220 (2005), ruling that the mandatory Guidelines
suffered from the same constitutional infirmity identified in
Apprendi and Blakely. Booker, 543
U.S. at 233-34. As a remedy, the provision making the
Guidelines mandatory was severed. Id. at 245
(invalidating 18 U.S.C. § 3553(b)(1)). Thus, since
Booker, the Guidelines have been advisory.
in November 2007, the United States Sentencing Commission
promulgated Amendment 706 to the Guidelines, which reduced by
two offense levels the base offense level in the Drug
Quantity Table corresponding to a given crack cocaine drug
quantity. See U.S.S.G. App. C, Vol. III at 226-31
(amending U.S.S.G. § 2D1.1(c)). Amendment 706 was
subsequently made retroactive. See U.S.S.G. §
1B1.10(d). Based on Amendment 706, Hammond moved, in April
2008, for a sentencing reduction pursuant 18 U.S.C. §
3582(c)(2). Def.'s Mot. Modify at 1. That motion is the
first of Hammond's two pending motions.
years later, Hammond filed a motion to dismiss his indictment
under the extant version of Federal Rule of Criminal
Procedure 12(b)(2), which authorized a party to “raise
by pretrial motion any defense, objection, or request that
the court can determine without a trial of the general
issue.” Fed. R. Crim. P. 12(b)(2) (2010). See
Def.'s Mot. Dismiss Indictment, ECF No. 77. Within a
month, Hammond's motion to dismiss was dismissed as
untimely, see Order (Aug. 4, 2010), ECF No. 78,
which decision the D.C. Circuit affirmed, see
Mandate (July 11, 2011), ECF No. 81. The orders did not
mention Hammond's still pending motion to reduce his
sentence, however. For the next several years, no activity
occurred in Hammond's case.
in June 2015, the Supreme Court, in Johnson v. United
States, 135 S.Ct. 2551 (2015), held as
unconstitutionally vague the so-called residual clause in the
Armed Career Criminal Act of 1984 (“ACCA”), 18
U.S.C. § 924(e)(1), which enhances the sentence for
those convicted of a federal firearms offense, under 18
U.S.C. § 922(g), after three or more prior convictions
for “a violent felony or a serious drug offense, or
both, ” as defined in 18 U.S.C. § 924(e)(2)(B).
Pertinent here, ACCA defines “violent felony” in
the same way the 1993 version of the Guidelines defined
“crime of violence, ” as, first, having “as
an element the use, attempted use, or threatened use of
physical force against the person or another, ” 18
U.S.C. § 924(e)(2)(B)(i); second, an enumerated felony,
id. § 924(e)(2)(B)(ii); and, third, in the
residual clause, “conduct that presents a serious
potential risk of physical injury to another, ”
id. Compare Id. § 924(e)(2)(B)
with U.S.S.G. § 4B1.2(1) (1993). In
Johnson, which considered a vagueness challenge only
to the residual clause's definition of violent felony,
the Court ruled that “the indeterminacy of the
wide-ranging inquiry required by the residual clause both
denies fair notice to defendants and invites arbitrary
enforcement by judges. Increasing a defendant's sentence
under the clause denies due process of law.” 135 S.Ct.
at 2557. “Two features of the residual clause
conspire[d] to make it unconstitutionally vague.”
Id. First, using the categorical approach to
determine the risk that a prior conviction posed “ties
the judicial assessment of risk to a judicially imagined
‘ordinary case' of a crime.” Id.
Second, increasing punishment based on past convictions that
posed a “serious potential risk of physical injury to
another” “leaves uncertainty about how much risk
it takes for a crime to qualify as a violent felony.”
Id. at 2558.
following year, the Supreme Court made Johnson
retroactive to cases on collateral review. See Welch v.
United States, 136 S.Ct. 1257, 1265 (2016). A month
after Welch, Hammond filed an emergency motion in
the D.C. Circuit asking for certification to file a second
§ 2255 motion. See 28 U.S.C. §§
2244(b)(3), 2255(h)(2) (requiring court approval for a
successive § 2255 motion). Hammond, relying on
Johnson, intended to attack his sentence insofar as
it relied on the Guidelines' career-offender designation.
Def.'s Emergency Mot. Authorization Second or Successive
Mot. at 5-7, ECF No. 82-1. The motion for certification was
granted. Order (June 23, 2016), ECF No. 82. On June 23, 2016,
to avoid potential timeliness problems, Hammond filed an
abridged § 2255 motion, see Def.'s Mot.
Vacate, Set Aside, Correct Sentence, as permitted by this
Court's June 2, 2016 Standing Order, see
Standing Order (June 2, 2016),
(authorizing defendants asserting the right to resentencing
following Johnson to file abridged motions by June
26, 2016, which motions would be supplemented by October 26,
case was reassigned to the undersigned judge on June 24,
2016, the day after Hammond filed his abridged § 2255
the October 26, 2016 deadline, the Supreme Court granted
certiorari in Beckles v. United States to
resolve whether a career-offender sentence under the
Guidelines that relied on application of the residual
clause's definition of crime of violence, suffered the
same vagueness problem identified in Johnson.
Following the grant of certiorari, this Court issued
a second standing order staying the October 26, 2016
supplemental briefing deadline for defendants challenging a
career-offender sentence dependent upon the Guidelines'
residual clause. See Standing Order 2 (Sep. 12,
v. United States, decided in March 2017, clarified that
only laws that define crimes or fix permissible sentences are
subject to vagueness challenges. 137 S.Ct. 886, 892 (2017).
Post-Booker, the Guidelines do neither. Id.
Rather, the advisory Guidelines “merely guide the
exercise of a court's discretion in choosing an
appropriate sentence within the statutory range.”
Id. Thus, application of the advisory
Guidelines' career-offender label survived constitutional
scrutiny. Id. at 897. After Beckles, this
Court instructed petitioners subject to the prior standing
orders to file any supplemental pleadings by May 26, 2017.
Standing Order 4 (Mar. 22, 2017),
filed a supplemental § 2255 motion by the new deadline.
See Def.'s Supp. § 2255 Mot. Ten days
later, he filed another supplement, correcting the prior
supplement's calculation of what Hammond's sentencing
range would be under the advisory Guidelines without the
career-offender enhancement. Def.'s Second Supp. Mot.
Vacate at 1. The Court ordered the government to respond to
both of Hammond's pending motions, Min. Order (Sep. 27,
2017), which the government did in November 2017,
see Gov't's Opp'n Mot. Modify, ECF No.
91; Gov't's Opp'n Mot. Vacate
(“Gov't's Opp'n § 2255 Mot.”),
ECF No. 92. Three months later, Hammond filed a reply in
support of his motion to vacate. Def.'s Reply Mot. Vacate
(“Def.'s Reply”), ECF No. 94.
Hammond's reply, the Supreme Court struck down 18 U.S.C.
§ 16(b) as unconstitutionally vague. Sessions v.
Dimaya, 138 S.Ct. 1204, 1210 (2018). Section 16(b),
which provided a federal definition of “crime of
violence” that resembled the ACCA's residual
clause, was incorporated by reference into the Immigration
and Nationality Act to determine which individuals were
subject to removal. Id. at 1210-11. That decision
elicited yet another supplement from Hammond. Def.'s
Supp. Reply. Mot. Vacate, ECF No. 95.
this lengthy history, Hammond's motion to modify and his
motion to vacate are at last ripe for review.
person in federal custody may petition the court in which he
was sentenced for resentencing “upon the ground 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). A court shall correct a sentence if
“the sentence imposed was not authorized by law or
otherwise open to collateral attack, or that there has been
such a denial or infringement of the constitutional rights of
the prisoner as to render the judgment vulnerable to
collateral attack.” Id. § 2255(b). The
petitioner bringing a motion under 28 U.S.C. § 2255 must
establish, by a preponderance of the evidence, the denial of
a constitutional right. See United States v.
Simpson, 475 F.2d 934, 935 (D.C. Cir. 1973).
motions under § 2255 are subject to “the strict
time limits that Congress has placed on prisoners seeking
collateral relief.” United States v. Hicks,
283 F.3d 380, 385 (D.C. Cir. 2002); see also 28
U.S.C. § 2255(f). Section 2255 provides several possible
one-year periods during which a petitioner may file a motion,
including within one year of “the date on which the
right asserted was initially recognized by the Supreme
Court.” 28 U.S.C. § 2255(f)(3). A motion that is
timely under only § 2255(f)(3) must also show that the
asserted right “has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review.” Id. These are independent
conditions limiting the availability of relief. Dodd v.
United States, 545 U.S. 353, 357-58 (2005). Before a
petitioner may file a second or successive § 2255
motion, the petitioner must make at least a prima facie
showing that the motion contains “a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255(h)(2); see also
In re Williams, 759 F.3d 66, 70 (D.C. Cir. 2014).
a sentence may be modified under 18 U.S.C. § 3582(c) if
the defendant meets two requirements: “First, the
defendant must have been sentenced based on a sentencing
range that has subsequently been lowered. … Second, a
reduction in the defendant's sentence must be consistent
with applicable policy statements issued by the Sentencing
Commission.” United States v. Berry, 618 F.3d
13, 16 (D.C. Cir. 2010) (internal quotation marks omitted).
§ 2255 motion to vacate his sentence asks for relief
that is broader than his § 3582(c) motion to reduce the
sentence. Since granting the motion to vacate would obviate
consideration of the motion to reduce, the former motion is
motion to vacate raises several questions that have divided
federal courts in the wake of the Supreme Court's recent
reconsideration of laws that once dictated federal
sentencing. See United States v. Carr, 314 F.Supp.3d
272, 277-78 and n.5-8 (D.D.C. 2018) (cataloging
“questions of significant importance” following
Johnson and Beckles and summarizing
resulting disagreements). Some questions touch on procedural
matters under AEDPA and others on substantive issues. Here,