368 F. Supp. 3d 1354
C.D. Cal.2018Background
- In 1992 Richard Marion Dota was convicted (after jury trial) of conspiracy to commit murder-for-hire (18 U.S.C. § 1958), multiple substantive § 1958 counts (Counts 3–9), and use of a firearm during a "crime of violence" in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2).
- At sentencing the court imposed a total term of 420 months: 240 months on Count 3; 120 months on Counts 4–9 (concurrent with each other, consecutive to Count 3); 60 months on Count 1 (concurrent); and 60 months on Count 2 (to run consecutively).
- Petitioner filed a § 2255 motion challenging Count 2 after intervening Supreme Court decisions addressing the constitutionality of similarly worded residual clauses.
- The core legal question: whether § 924(c)(3)(B)’s residual clause is unconstitutionally vague (post‑Johnson/Dimaya) and, if so, whether the underlying § 1958 offense qualifies as a "crime of violence" under the elements (force) clause § 924(c)(3)(A).
- The Government conceded prejudice from the consecutive five‑year mandatory minimum if Count 2 could not stand; the Ninth Circuit authorized Dota’s successive § 2255 filing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 924(c)(3)(B) residual clause is constitutional | Residual clause is unconstitutionally vague under Johnson and Dimaya | Residual clause remains valid; prior circuit disagreement | Court: § 924(c)(3)(B) is unconstitutionally vague (applies Johnson/Dimaya) |
| Whether § 1958 (murder‑for‑hire travel/use statute) is a "crime of violence" under § 924(c)(3)(A) (elements/force clause) | § 1958 does not have as an element the use, attempted use, or threatened use of physical force; it criminalizes travel/use of interstate facilities with intent | Government: realistic probability prosecutions would involve force; Duenas‑Alvarez limits categorical analysis | Court: § 1958 does not qualify under the elements clause; conviction under § 924(c) invalid |
| Whether Dota’s § 2255 is successive and/or procedurally defaulted | New constitutional rule (Johnson/Dimaya) excuses default; Ninth Circuit authorized successive filing; actual innocence and prejudice shown | Government argues procedural default bars relief | Court: Ninth Circuit authorized; cause and prejudice (and actual innocence) excuse default; claim heard |
| Remedy and effect on sentence | Vacate Count 2 and resentencing/recalculation of term and BOP release date | Government opposed vacatur of Count 2 but conceded prejudice | Court: Vacated Count 2, struck the consecutive 60‑month term; ordered BOP to recalculate and notify Dota and counsel; immediate release if recalculation yields past date |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause held unconstitutionally vague)
- Sessions v. Dimaya, 138 S. Ct. 1204 (2018) (similar residual clause in 18 U.S.C. § 16(b) invalidated under Johnson reasoning)
- Gonzales v. Duenas‑Alvarez, 549 U.S. 183 (2007) (categorical‑analysis guidance; require "realistic probability" of prosecution of the statutory elements)
- Massaro v. United States, 538 U.S. 500 (2003) (procedural default rule for claims not raised on direct appeal)
- Bousley v. United States, 523 U.S. 614 (1998) (cause-and-prejudice and actual innocence standards to excuse procedural default)
- United States v. Boman, 873 F.3d 1035 (8th Cir.) (holding § 1958 not a crime of violence under § 924(c)(3)(A))