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United States v. Carter

United States District Court, District of Columbia

October 29, 2019

UNITED STATES OF AMERICA,
v.
DARRYL CARTER, Defendant.

          MEMORANDUM OPINION

          ELLEN S. HUVELLE UNITED STATES DISTRICT JUDGE

         Defendant Darryl Carter was convicted in 2004 of one count of Hobbs Act robbery in violation of 18 U.S.C. § 1951 and one count of using a shotgun during a crime of violence (the Hobbs Act robbery) in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (B)(i). (See Judgment, Sept. 14, 2004, ECF No. 19.) Under the then-mandatory Sentencing Guidelines, he was sentenced to 160 months imprisonment for the Hobbs Act robbery conviction because of his status as a career offender under § 4B1.1 of the Guidelines, and a consecutive 120 months imprisonment for the § 924(c) conviction (the statutory mandatory minimum), resulting in a total sentence of 280 months imprisonment. (Id.) His projected release date is October 13, 2027.

         Before the Court is defendant's motion, filed pursuant to 28 U.S.C. § 2255, asking the Court to vacate his Hobbs Act robbery sentence and his § 924(c) conviction in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015).[1] For the reasons set forth herein, defendant's motion is granted in part and denied in part. His motion to vacate his § 924(c) conviction is denied, but his motion to vacate his Hobbs Act robbery sentence is granted and he will be resentenced on that count without application of the career offender Guideline.

         BACKGROUND

         I. FACTUAL BACKGROUND

         The facts relevant to this motion can be briefly summarized. Pursuant to a plea agreement, defendant pleaded guilty to one count of Hobbs Act robbery in violation of 18 U.S.C. § 1951 and one count of using a shotgun during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (B)(i). In his plea agreement, defendant admitted to three prior convictions: (1) indecent act on a minor in violation of D.C. law (D.C. Superior Court, No. 1989FEL001205); (2) escape in violation of D.C. law (D.C. Superior Court, No. 1996FEL007425); and (3) unlawful possession of a firearm by a convicted felon in violation of federal law (U.S. District Court for D.C., No. 96-CR-480). He further agreed that these convictions rendered him a career offender under § 4B1.1(a) of the then-mandatory federal Sentencing Guidelines because at least two were convictions for “crimes of violence.”[2]

         At sentencing, the court applied the career offender Guideline and determined that defendant's sentencing range for the Hobbs Act robbery conviction was 151-188 months.[3] Combined with the statutory mandatory minimum consecutive sentence of 120 months for the § 924(c) conviction, defendant's combined sentencing range was 271-308 months. The judge imposed a sentence of 280 months: 160 months for the Hobbs Act robbery conviction and 120 months for the § 924(c) conviction.

         II. THE SUPREME COURT'S “RESIDUAL CLAUSE” DECISIONS: JOHNSON (2015); WELCH (2016); BECKLES (2017), DIMAYA (2018) AND DAVIS (2019)

         Eleven years after defendant was sentenced, the Supreme Court issued a series of “residual clause” decisions.

         A. Johnson

         The first case was Johnson v. United States, which concerned the “residual clause” in the Armed Career Criminal Act's (“ACCA”) definition of a violent felony. 135 S.Ct. 2551 (2015). The ACCA provides that a defendant convicted of violating 18 U.S.C. § 922(g) who has “three previous convictions . . . for a violent felony or a serious drug offense” is subject to a mandatory minimum sentence of 15 years imprisonment. 18 U.S.C. § 924(e)(1). The term “violent felony” is defined to include “any crime punishable by imprisonment for a term exceeding one year . . . that-

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.CA. § 924 (emphasis added). The italicized portion of subsection (ii) is referred to as the “residual clause.” In Johnson, the Supreme Court held that the ACCA's residual clause was void for vagueness under the Fifth Amendment's due process clause. Johnson, 135 S.Ct. at 2557. The Court observed that the Due Process Clause prohibits the government from “taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Id. at 2556. The Court went on to explain that under this standard, “[t]wo features of [ACCA's] residual clause conspire to make it unconstitutionally vague.” Id. at 2557. First, because courts used the “categorical approach” to decide which crimes were covered by the residual clause, it created “grave uncertainty about how to estimate the risk posed by a crime.” Id[4]Second, “the residual clause leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.” Id. at 2558. The Court concluded that “[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, ” the ACCA's residual clause “produce[d] more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id.

         B. Welch

         In Welch v. United States, the Supreme Court held that its decision in Johnson applied retroactively to cases on collateral review. 136 S.Ct. 1257, 1265 (2016) (“Johnson is ... a substantive decision and so has retroactive effect . . . in cases on collateral review.”).

         Johnson and Welch spawned a flood of § 2255 motions from defendants seeking to vacate ACCA convictions and also from defendants who had been convicted or were serving sentences based on similarly-worded “residual clauses” in other federal statutes or in the Sentencing Guidelines. In this jurisdiction, though, it was agreed to defer full briefing on the non-ACCA motions until the Supreme Court ruled on the “residual clause” cases before it. (See Standing Orders.)

         C. Beckles

         The first of these cases was Beckles v. United States, which challenged the residual clause in the “career offender” provision of the Sentencing Guidelines. 137 S.Ct. 886, 890 (2017). The career offender Guideline in effect at the time Beckles was sentenced provided that a “crime of violence” included

any offense under federal or state law, punishable by imprisonment for a term exceeding one year that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G § 4B1.2(a) (emphasis added to “residual clause”). This clause is identical to the ACCA's residual clause and to the one that was in effect when defendant was sentenced. However, unlike defendant, Beckles was sentenced after the Supreme Court's ruling that the mandatory Guidelines were unconstitutional.[5] For a majority of the Court, this distinction was critical, forming the basis for their conclusion that Beckles was not sentenced pursuant to an unconstitutionally vague residual clause because “the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause”[6] Beckles, 137 S.Ct. at 890 (emphasis added). The Court explained:

[T[he Due Process Clause prohibits the Government from “taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.” Applying this standard, the Court has invalidated two kinds of criminal laws as “void for vagueness”: laws that define criminal offenses and laws that fix the permissible sentences for criminal offenses.

Id. at 892 (quoting Johnson, 135 S.Ct. at 2556). The Court found that the advisory Guidelines, unlike the ACCA, “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.. Accordingly, the Court concluded that the advisory Guidelines could not be unconstitutionally vague. Id.

         Justices Ginsburg and Sotomayor concurred in the judgment. believing that the case should have been decided on the much narrower ground that § 4B1.2 was not vague as applied to Beckles. See Id. at 897-98 (Ginsburg, J., concurring); id. at 898 (Sotomayor, J., concurring).[7]

         Justice Sotomayor also wrote separately to explain that although she did not agree with the Court's holding that the advisory Guidelines were not subject to vagueness challenges, [8] the majority's analysis at least left open the question whether the residual clause in the mandatory Guidelines was unconstitutionally vague:

The Court's adherence to the formalistic distinction between mandatory and advisory rules at least leaves open the question whether defendants sentenced to terms of imprisonment before our decision in United States v. Booker, 543 U.S. 220 (2005)-that is, during the period in which the Guidelines dd “fix the permissible range of sentences, ”-may mount vagueness attacks on their sentences.

Beckles, 137 S.Ct. at 903 n.4 (Sotomayor, J.) (quoting id. at 892) (internal citations omitted).

         D. Dimaya

         Next came Sessions v. Dimaya, which challenged the constitutionality of a similarly-worded “residual clause” in the definition of a “crime of violence” in 18 U.S.C. § 16.[9] Sessions v. Dimaya, 138 S.Ct. 1204, 1210 (2018).[10] In what it described as a “straightforward application” of its “straightforward decision” in Johnson, the Supreme Court held that § 16's “similarly worded” residual clause was unconstitutionally vague. Id. at 1213. The Court explained that “Johnson effectively resolved the case now before [it]” because “§ 16's residual clause has the same two features as ACCA's, combined in the same constitutionally problematic way.” Id.[11]

         E. Davis

         Finally came United States v. Davis, in which the Supreme Court considered whether the residual clause in 18 U.S.C. § 924(c)'s definition of a “crime of violence” was void for vagueness. 139 S.Ct. 2319, 2324 (2019). In § 924(c), a “crime of violence” is defined as “an offense that is a felony” and

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3) (emphasis added to “residual clause”). The Court concluded that this residual clause was unconstitutionally vague. Davis, 139 S.Ct. at 2325-27.[12]

         III. DEFENDANT'S § 2255 MOTION

         On May 31, 2016, defendant petitioned the D.C. Circuit pursuant 28 U.S.C. § 2255(h)(2) for authorization to file a second or successive 2255 motion “on the basis of Johnson v. United States, 135 S.Ct. 2551 (2015).”[13] He sought permission to file two “residual clause” claims: (1) a claim challenging “his § 924(c) conviction based on Johnson's holding that the residual clause in the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), § 924(e)(2)(B)(ii)--which is materially identical to § 924(c)'s residual clause--is unconstitutionally vague”; and (2) a claim challenging “his career offender sentence under U.S.S.G. § 4B1.1, which incorporates through U.S.S.G. § 4B1.2(a) a residual clause identical to the ACCA's residual clause.” (See Emergency Mot. for Authorization to File a Second or Successive Mot. Under 28 U.S.C. § 2255, at 1, In re Darryl Carter, No. 16-3046 (D.C. Cir. May 31, 2016) (attached to Order of USCA, ECF No. 92).)

         On June 23, 2016, the Court of Appeals granted the petition, finding that defendant had “made a prima facie showing that his claims rely on a new, previously unavailable rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” (Order of USCA at 1.) The Court of Appeals' order directed that the petition be transmitted to the district court for filing as an “abridged” motion pursuant to 28 U.S.C. § 2255. (Id. (citing Standing Order of the U.S. District Court for the District of Columbia issued June 2, 2016).) It further provided that

The petition for leave to file a second or successive § 2255 motion was filed within one year of the Supreme Court's June 26, 2015 Johnson decision, so the “abridged” motion shall be deemed timely filed in district court.

Id. Finally, the order stated that the Court of Appeals “expresses no opinion as to the merits of petitioner's claims.” See id.

         Defendant's abridged motion was docketed in the district court on June 23, 2016 (see Def.'s Mot. to Vacate, ECF No. 93), but, as previously noted, further briefing was deferred pending the Supreme Court's resolution of Beckles, Dimaya and Davis.[14] (See Johnson Standing Order Nos. 2-7 (available at https://www.dcd.uscourts.gov/news/standing-orders-regarding-possible-sentence-reductions-pursuant-johnson-v-united-states-135-s).) On March 12, 2019, defendant filed his supplemental motion to vacate, the government responded, opposing any relief, and defendant filed a reply. (See Def.'s Supp. Mot. to Vacate, ECF No. 94 (“Mot.”); Gov't Opp. to Mot., ECF No. 101 (“Opp.”); Def.'s Reply, ECF No. 102 (“Reply”).)

         ANALYSIS

         Defendant's § 2255 motion raises both of the “residual clause” claims certified by the Court of Appeals. The government presents a number of arguments for why both claims should be denied. The Court will first address the § 924(c) claim and then turn to the career offender Guidelines claim.

         I. THE § 924(c) CLAIM

         Defendant claims that his conviction for using a shotgun during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and (B)(i) must be vacated because (1) the residual clause in § 924(c)'s definition of a “crime of violence” is unconstitutionally vague; and (2) Hobbs Act robbery-the predicate offense for his § 924(c) conviction-does not otherwise qualify as a “crime of violence” under the remaining parts of the definition. The government recognizes that in light of the Supreme Court's decision in Davis, it cannot dispute that the residual clause in § 924(c)(3)(B) is void for vagueness. But it argues that defendant's § 924(c) claim should nonetheless be rejected either because (1) it is procedurally barred; or (2) Hobbs Act robbery qualifies as a “crime of violence” under the still-valid “elements” ...


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