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” ...