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
...