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United States v. Hammond

United States District Court, District of Columbia

November 28, 2018




         Nearly 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 Guidelines.

         Due to 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.[1] 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.

         I. BACKGROUND

         On July 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.[2]

         At 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.

         To 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.[3] 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.

         Thus, 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.

         At the 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, (search “Navarro Hammond”).

         On 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).

         Hammond 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).

         Shortly 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.

         Next, 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.

         Two 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.

         Then, 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).[4] 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.

         The 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, 2016).[5]

         This case was reassigned to the undersigned judge on June 24, 2016, the day after Hammond filed his abridged § 2255 motion.

         Before 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, 2016),

         Beckles 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),

         Hammond 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.

         After 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.

         Following this lengthy history, Hammond's motion to modify and his motion to vacate are at last ripe for review.


         A 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).

         All 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).

         Separately, 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).


         Hammond's § 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 considered first.

         Hammond's 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, ...

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