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United States v. Hammond

United States District Court, District of Columbia

December 7, 2018

UNITED STATES OF AMERICA,
v.
PAUL EDWARD HAMMOND, Defendant.

          MEMORANDUM OPINION

          BERYL A. HOWELL, CHIEF JUDGE

         In 2003, the defendant Paul Hammond pleaded guilty to possessing a firearm after having a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1), and to armed robbery, in violation of D.C. Code §§ 22-2901, 22-3202. He was subsequently sentenced to 115 months' imprisonment on the firearm conviction and 240 months' imprisonment on the armed robbery conviction, to be served consecutively. Judgment in a Criminal Case (“Judgment”) at 2, ECF No. 25. Under the United States Sentencing Guidelines (“Guidelines”) that governed Hammond's sentence for the federal firearm conviction, his Guidelines sentencing range for the firearm conviction was 92 to 115 months' imprisonment, based on his two prior convictions for a “crime of violence.” See Judgment, Statement of Reasons (“SOR”), at 6, ECF No. 25; see also U.S.S.G. § 2K2.1(a)(2) (2003).[1]

         Since Hammond's sentencing, the Supreme Court has held unconstitutional laws that enhance criminal sentences due to a defendant's prior conviction for a crime of violence, as defined by the so-called “residual clause.” See Johnson v. United States, 135 S.Ct. 2551 (2015). Hammond claims that because he was sentenced at a time when the Guidelines had the force of law, and because his sentence was enhanced through application of the residual clause, he is entitled to resentencing on his firearm conviction. Thus, Hammond filed a motion, under 28 U.S.C. § 2255, asking that his 115-month sentence be vacated and that he be resentenced under the current Guidelines. See Def.'s Mot. Vacate, Set Aside, or Correct Sentence (“Def.'s § 2255 Mot.”), ECF No. 24, as supplemented, Def.'s Supp. Mot. Vacate (“Def.'s Supp. § 2255 Mot.”), ECF No. 27.

         To prevail, Hammond must first overcome two procedural barriers imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, and then establish that the Supreme Court itself has recognized, and made retroactive, a right not to have a criminal sentence enhanced pursuant to the mandatory Guidelines' residual clause. Hamond has made those showings. Second, Hammond must establish that without the residual clause, his prior convictions do not qualify as crimes of violence. Hammond fails at this second stage because the prior convictions that served as the basis for his enhanced sentence constitute crimes of violence under the Guidelines' so-called “elements clause.” Thus, Hammond's § 2255 motion is denied.

         I. BACKGROUND

         On April 15, 2002, a District of Columbia Metropolitan Police Department (“MPD”) officer learned of a man at the intersection of Florida Avenue and V Street, N.W., Washington, D.C., wielding a handgun. Presentence Report (“PSR”) ¶¶ 12-13, ECF No. 36. The officer approached a man at that intersection, later identified as Hammond, who lifted his shirt, and the officer observed a handgun. Id. ¶ 13. Hammond was arrested. Id. Shortly thereafter, MPD discovered that two men had just committed an armed robbery at a nearby clothing store. Id. ¶¶ 14-15. The investigation disclosed that Hammond was one of the two and that during the robbery Hammond had struck a victim with a clothing rack, placed a gun to the victim's head, and pulled the trigger twice. Id. The gun did not fire and Hammond fled. Id.

         As noted, Hammond pleaded guilty, in August 2003, to charges of unlawful possession of a firearm by a person with a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1), and armed robbery, in violation of D.C. Code § 22-2901 (now codified at D.C. Code § 22-2801) and D.C. Code § 22-3202. See Plea Agreement at 1, ECF No. 17; see also Judgment at 1.

         At Hammond's sentencing, in December 2003, the presiding judge generally adopted “the factual findings and guideline application in the [PSR].” Judgment, SOR, at 6. According to the PSR, Hammond had at the time of sentencing, four adult criminal cases resulting in convictions, including: (1) a Maryland conviction for shoplifting and possession of drug paraphernalia, PSR ¶ 33; (2) a D.C. Superior Court conviction for petty larceny and shoplifting, id. ¶ 34; (3) a federal conviction for bank robbery, id. ¶ 35; and (4) a Maryland conviction for robbery with a deadly weapon, id. ¶ 36. Based on the latter two convictions, in conjunction with Hammond having committed the federal firearm offense while under a criminal sentence, Hammond's criminal history category under the Guidelines was IV. Id. ¶¶ 37-39.

         The PSR determined that Hammond's base offense level, under U.S.S.G. § 2K2.1(a)(2) (2003), was 24, PSR ¶ 22, which reflected that Hammond had “committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense, ” U.S.S.G. § 2K2.1(a)(2) (2003).[2] This base offense level was increased by four levels, due to Hammond's possession of a gun in connection with another felony, PSR ¶ 23 (citing U.S.S.G. § 2K2.1(b)(5) (2003)), and reduced by two levels for his acceptance of responsibility, PSR ¶ 29 (citing U.S.S.G. § 3E1.1(a) (2003)). This resulted in a total offense level for the firearm conviction of 26. PSR ¶ 30. Hammond's criminal history category of IV and offense level of 26 resulted in a Guidelines range of 92 to 115 months' imprisonment. U.S.S.G. Ch. 5 Pt. A (2003); see also Judgment, SOR, at 6.

         As used in U.S.S.G. § 2K2.1 at the time of Hammond's sentencing, “‘[c]rime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2.” U.S.S.G. § 2K2.1 cmt. n. 5 (2003). In turn, § 4B1.2(a) of the Guidelines version under which Hammond was sentenced 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(a)(1) (2003). 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(a)(2) (2003). 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]

         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 federal firearm conviction to a within Guidelines sentence of 115 months' imprisonment, to run consecutively with a 240-month sentence on the armed robbery conviction. Judgment at 2. According to the Bureau of Prisons, Hammond's scheduled release date is January 22, 2028. See Find an Inmate, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ (search “Paul Edward Hammond”).

         Hammond did not appeal his convictions or sentence.

         In 2005, federal sentencing was affected by the first legal shift at the heart of this case. Over the preceding five years, the Supreme Court had ruled, in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), that the Sixth Amendment protects a defendant's right to have all facts, other than a prior conviction, that the law makes essential to punishment, proved beyond a reasonable doubt. Then, in January 2005, the Supreme Court held that, because the mandatory Guidelines required judges to increase sentences based on facts found by only a preponderance of the evidence, the mandatory Guidelines suffered from the same constitutional infirmity identified in Apprendi and Blakely. United States v. Booker, 543 U.S. 220, 231-34 (2005). 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.

         Ten years later, the Supreme Court, in Johnson v. United States, 135 S.Ct. 2551 (2015), held that the residual clause in the Armed Career Criminal Act of 1984 (“ACCA”), Pub. L. 98-473, 98 Stat. 1837, was unconstitutionally vague. Under the ACCA, a defendant convicted of a federal firearm offense, under 18 U.S.C. § 922(g), is subject to an enhanced sentence if the defendant has three or more prior convictions for “a violent felony or a serious drug offense, or both.” See 18 U.S.C. § 924(e)(1). Pertinent here, § 924(e)(2)(B) defines “violent felony” in the same way the 2003 version of the Guidelines defined “crime of violence”: first, in the elements clause, as 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, in the enumerated-felonies clause, as being one of several listed felonies, id. § 924(e)(2)(B)(ii); and, third, in the residual clause, as involving “conduct that presents a serious potential risk of physical injury to another, ” id.[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). Two months after Welch, to avoid potential timeliness problems, Hammond filed an abridged § 2255 motion, see Def.'s § 2255 Mot., as permitted by this Court's June 2, 2016 Standing Order, see Standing Order (June 2, 2016), http://www.dcd.uscourts.gov/sites/dcd/files/1853001.pdf (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).

         By the time that Hammond filed his abridged § 2255 motion, the sentencing judge had retired and this case was reassigned to the undersigned judge on June 21, 2016.

         Before the October 26, 2016 deadline, the Supreme Court granted certiorari in Beckles v. United States to resolve whether a 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 the Guidelines' residual clause. See Standing Order 2 (Sep. 12, 2016), http://www.dcd.uscourts.gov/sites/dcd/files/JohnsonUnitedStatesNo2.pdf.

         Beckles v. United States, 137 S.Ct. 886 (2017), decided in March 2017, clarified that only laws that define crimes or fix permissible sentences are subject to vagueness challenges. Id. at 892. 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, the advisory Guidelines' residual clause 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), https://www.dcd.uscourts.gov/sites/dcd/files/JohnsonUnitedStatesNo4.pdf.

         Hammond filed a supplemental § 2255 motion on the new deadline. See Def.'s Supp. § 2255 Mot. The Court ordered the government to respond to Hammond's pending motion, Min. Order (dated Sep. 27, 2017), which the government did in November 2017, see Gov't's Opp'n Def.'s Mot. Vacate (“Gov't's Opp'n”), ECF No. 30. Four months later, Hammond filed a reply in support of his motion to vacate. Def.'s Reply Mot. Vacate (“Def.'s Reply”), ECF No. 32. He supplemented the reply five days later to notify the Court of his exemplary record while incarcerated. Def.'s Supp. Reply Mot. Vacate, ECF No. 33.

         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 into the Immigration and Nationality Act to determine which individuals were subject to removal. Id. at 1210-11. Dimaya prompted a second supplement from Hammond. Def.'s Second Supp. Reply. Mot. Vacate, ECF No. 34. Then, after the Seventh Circuit issued a ruling in Cross v. United States, 892 F.3d 288 (7th Cir. 2018), which addressed many of the same issues raised in Hammond's § 2255 motion, Hammond submitted another supplemental filing. Def.'s Third Supp. Reply Mot Vacate, ECF No. 35.

         Hammond's motion to vacate is now ripe for review.

         II. LEGAL STANDARD

         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).

         III.DISCUSSION

         Hammond's sentence for his firearm offense reflects his two prior convictions for a “crime of violence.” See PSR ¶¶ 22, 35, 36; U.S.S.G. § 2K2.1(a)(2) (2003). Hammond claims that he is entitled to resentencing because Johnson holds that, for defendants sentenced before Booker, the Guidelines' residual clause is unconstitutionally vague. Def.'s Supp. § 2255 Mot. at 9-13. While Johnson was decided after Hammond's convictions became final, Hammond explains that Johnson has been given retroactive effect. Id. at 14-17. Finally, Hammond maintains that without the residual clause, his Maryland armed robbery and his federal bank robbery convictions do not qualify as crimes of violence under the Guidelines' two other definitions of crime of violence. Id. at 17-36.[5]

         In response, the government puts forward multiple arguments for denial of this motion, including that Hammond's guilty plea waived the right to bring the instant § 2255 motion, Gov't's Opp'n at 10-11; Hammond's vagueness claim has been procedurally defaulted, id. at 11-12; Hammond's motion is untimely, id. at 13-19; Johnson's right has not been made retroactive to cases like Hammond's, id. at 20-25; Beckles precludes attacking for vagueness the mandatory Guidelines, id. at 26-29; and, finally, even if Hammond prevails on these aforementioned arguments, Hammond's predicate convictions are crimes of violence under the Guidelines' elements clause, id. at 29-34.

         For the reasons that follow, Hammond's vagueness argument is neither untimely nor procedurally defaulted. Moreover, Johnson has been made retroactive and enforcing that decision requires invalidating any sentence enhanced through application of the mandatory Guidelines' residual clause. Despite clearing those hurdles, Hammond is not entitled to resentencing on his federal firearm conviction because the prior convictions on which Hammond's enhanced sentence are based qualify as crimes of violence under the Guidelines' elements clause.[6]

         A. Hammond's Motion to Vacate is Not Barred by AEDPA's Procedural Requirements

         The government gives two procedural reasons that AEDPA requires denying Hammond's § 2255 motion: (1) timeliness and (2) default. Both are unavailing for the reasons discussed below.

         1. Timeliness Under 28 U.S.C. § 2255(f)(3)

         Motions under § 2255 are subject to a “1-year period of limitation.” 28 U.S.C. § 2255(f). The limitation period runs from the latest of several possible dates, with only one date available to Hammond: “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).

         Prior to 2005, circuit courts were divided as to how to read § 2255(f)(3). See Dodd v. United States, 545 U.S. 353, 356 (2005) (referencing “conflict in the Court of Appeals over when the limitation period in [§ 2255(f)(3)] begins to run”). Some courts read § 2255(f)(3)'s limitation period to run from the date that the Supreme Court initially recognized a right, while others read the period to run from the date that the right is made retroactive. Id. (summarizing circuit split). Dodd ruled that under § 2255(f)(3), “[a]n applicant has one year from the date on which the right he asserts was initially recognized by [the Supreme] Court” to file a motion. Id. at 357. The Court reached that conclusion by emphasizing the unique function of § 2255(f)(3)'s two clauses. Timeliness is wholly defined by the first clause, which authorizes motions filed within one year of “the date on which the right asserted was initially recognized by the Supreme Court.” Id. at 358 (“Dodd's reliance on the second clause to identify the operative date is misplaced.”). The second clause, which requires that the “right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review, ” operates to “impose[] a condition on the applicability” of § 2255(f)(3). Id. “That means that [§ 2255(f)(3)'s] date … does not apply at all if the conditions in the second clause … have not been satisfied.” Id. Indeed, “[a]s long as the conditions in the second clause are satisfied so that [§ 2255(f)(3)] applies in the first place, that clause has no impact whatsoever on the date from which the 1-year limitation period in [§ 2255(f)(3)] begins to run.” Id.

         Johnson was decided on June 26, 2015 and Hammond's abridged motion was filed on June 20, 2016. See Def.'s § 2255 Mot. Thus, Hammond filed his motion within one year of Johnson. Nevertheless, the government claims that Hammond's motion is untimely because “the Supreme Court in Johnson did not itself recognize the substantive right that defendant now claims entitles him to resentencing.” Gov't's Opp'n at 15. Instead, in the government's view, Johnson applies only to the ACCA and Hammond's motion must wait until the Supreme Court itself invalidates sentences pursuant to the mandatory Guidelines' residual clause. Id. at 15-16. Hammond counters that “Johnson announced the right not to have a sentence fixed by an unconstitutionally vague residual ...


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