United States v. Bercier
192 F. Supp. 3d 1142
E.D. Wash.2016Background
- Defendant pleaded guilty to being a felon in possession of ammunition (18 U.S.C. § 922(g)(1)) and was sentenced to 51 months’ imprisonment after the court calculated a Guidelines Total Offense Level of 17 (base level reduced for acceptance).
- The Presentence Report had treated a Washington second-degree robbery conviction as a prior "crime of violence," which supported application of U.S.S.G. § 2K2.1(a)(4)(A) in determining the base offense level.
- In Johnson v. United States, the Supreme Court held the ACCA residual clause void for vagueness; the defendant moved under 28 U.S.C. § 2255 arguing Johnson also invalidates the identical residual clause in U.S.S.G. § 4B1.2(a)(2).
- The Government contended the motion is more properly seen as a Descamps challenge and that the new rule should not apply retroactively in the Guidelines context; the defendant relied on Johnson and Welch for substantive-retroactivity arguments.
- The court concluded Johnson applies to the Sentencing Guidelines retroactively and then applied the Descamps categorical approach to assess whether Washington second-degree robbery qualifies as a "crime of violence."
Issues
| Issue | Plaintiff's Argument | Defendant's (Government's) Argument | Held |
|---|---|---|---|
| Whether Johnson invalidates the identical residual clause in U.S.S.G. § 4B1.2(a)(2) | Johnson's invalidation of ACCA residual clause likewise voids the Guidelines residual clause | Characterized defendant's claim as Descamps-type or non-retroactive procedural rule | Court: Johnson applies to the Guidelines; defendant's petition properly based on Johnson |
| Whether Johnson is retroactive on collateral review for Guidelines enhancements | Johnson announced a substantive rule (per Welch) and is retroactive to Guidelines cases | Retroactivity disfavored in Guidelines context; Guidelines errors are procedural | Court: Johnson is substantive and retroactive to the Guidelines under Ninth Circuit precedent |
| Whether Washington second-degree robbery is a qualifying "crime of violence" under § 4B1.2 (enumerated offenses: robbery or extortion) | Second-degree robbery could qualify as robbery/extortion or physical-force offense | Statute is overbroad/indivisible; does not categorically match generic robbery or extortion | Court: Washington second-degree robbery is not a categorical match for generic robbery or extortion and is indivisible, so it is not a "crime of violence" under § 4B1.2 |
| Whether second-degree robbery qualifies under the Guidelines' "physical force" clause | Prior conviction involves use/threat of force so qualifies under physical-force prong | Statute allows threats to property; force against property may not be the violent, intentional force required | Court: Statute criminalizes force directed at property and is indivisible; does not categorically meet the "physical force" definition |
Key Cases Cited
- Johnson v. United States, 135 S. Ct. 2551 (2015) (ACCA residual clause void for vagueness)
- Welch v. United States, 136 S. Ct. 1257 (2016) (Johnson rule is substantive and retroactive on collateral review)
- Descamps v. United States, 133 S. Ct. 2276 (2013) (categorical approach and three-step test for predicate offenses)
- Teague v. Lane, 489 U.S. 288 (1989) (framework for retroactivity of new constitutional rules on collateral review)
- Molina-Martinez v. United States, 136 S. Ct. 1338 (2016) (Guidelines as the starting point and framework for sentencing)
- Reina-Rodriguez v. United States, 655 F.3d 1182 (9th Cir. 2011) (applying substantive-rule retroactivity from ACCA context to Guidelines enhancements)