Just over 25 years ago, in December 1992, Petitioner was sentenced to a term of *1356imprisonment of 35 years (420 months), for his taking part in a murder-for-hire conspiracy. A Supreme Court case decided in April 2018 necessitates reexamination of whether Petitioner was sentenced pursuant to an unconstitutionally vague and/or inapplicable provision of federal criminal law. As explained below, this new case law requires invalidation of 60 months of Petitioner's 420-month sentence of imprisonment.
This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Federal Sentence. (Doc. 1.) Petitioner moves to vacate or modify the federal sentence imposed upon him by this Court on December 18, 1992 in United States v. Richard Marion Dota , SACR 92-00005-JLS-2. The Government filed an Opposition brief. (Doc. 20.) Petitioner filed a Reply brief and supplemental briefing. (Docs. 23-26.)
As set forth below, the Court GRANTS the Motion.
I. Motion to Vacate or Correct Federal Sentence
Petitioner moves pursuant to
As a matter of procedure, the Court is required to review the motion to determine whether the moving party may be entitled to relief. See Rule 4(b) of the Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. § 2255. If, upon the Court's initial review, "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party."
II. Petitioner's Sentence
The murder-for-hire plot is summarized in the Presentence Investigation Report ("PSR"). (See Doc. 7 (sealed), PSR ¶¶ 25-45.) Briefly, co-Defendant and business owner Julius Frederick Schill sought Defendant's assistance in killing Wilbur Constable, the fiancé of Schill's secretary Asher, a woman whom Schill wished to pursue romantically. Defendant traveled from Las Vegas to Tustin, California, met with Schill, cashed a check given to him by Schill, and then met with another man (co-Defendant Yoon) in order to outsource the "hit" to Yoon. Defendant went back to Las Vegas, but returned shortly thereafter to again meet with Yoon to help plan the "hit." The plan included damaging Constable's car, leaving a business card with the information of the "responsible party," and then luring the unsuspecting Constable to a parking lot behind an office park complex, ostensibly so that the responsible party could pay him for the damage to his car. Although suspicious, Constable went to the parking lot. Constable was himself armed with a handgun, but he was unable to successfully defend himself. Yoon and two others (also co-Defendants) met Constable in the parking lot, beat him with baseball bats, shot him in the back of the head, and left him for dead. Yoon, believing *1357Constable was dead, reported to Defendant by telephone that he had "hit a homerun." Surprisingly, Constable survived the assault. Unsurprisingly, he was severely injured and hospitalized. When Schill learned from Asher that Constable was still alive, he called Defendant in Las Vegas, who then called Yoon to tell him Constable had survived. In formulating a plan to finish the job, Yoon again telephoned Defendant. The revised plan fell through, and the present prosecution eventually ensued.
On June 24, 1992, after a twenty-one day jury trial, Petitioner was convicted on Counts 1 through 9 of the Second Superseding Indictment. (See CR Doc. 262.) Specifically, Petitioner was convicted of conspiracy to commit murder-for-hire (Count 1), use of a firearm during a crime of violence in violation of
On December 18, 1992, the Court held Petitioner's sentencing hearing. (See CR Doc. 303.)
III. Statutory Sentencing Provision
The present Motion addresses the sentence imposed for Count 2. By statute, there is a five-year mandatory prison sentence as to Count 2 that must be imposed consecutively to any other sentence of imprisonment. Specifically, Petitioner was in 1992 convicted of use of a firearm during the commission of a "crime of violence" in violation of
(c)(1)(A) [A]ny person who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime ... (i) be sentenced to a term of imprisonment of not less than 5 years ....
The statute itself defines "crime of violence" in two ways:
(c) ... (3) For purposes of this subsection the term "crime of violence" means 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.
*1358while the second clause, clause (B), is referred to as the "residual clause." See United States v. Collins , No. 16-CV-03345-SI,
As explained below, recent Supreme Court case law establishes that the residual clause is unconstitutionally vague. Therefore, unless Petitioner's offense also meets the "crime of violence" definition under the elements clause, his conviction on Count 2 is invalid and must be vacated. The Court first discusses the unconstitutionality of the residual clause and thereafter considers whether Petitioner's offense meets the definition of a "crime of violence" under the elements clause.
IV. Residual Clause
In Johnson v. United States , --- U.S. ----,
More recently, the Supreme Court affirmed a Ninth Circuit opinion and invalidated a similarly worded residual clause found in
The residual clause at issue in this case is indistinguishable from § 16(b). In fact, the language used in the clause is identical.
This Court also concludes that application of Johnson and Dimaya compels the conclusion that the residual clause found in § 924(c)(3)(B), defining a "crime of violence," is unconstitutionally vague.
V. Elements Clause
The Government contends Petitioner's sentence is proper under the elements clause, which defines "crime of violence" as a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another."
The shorthand description of Count 1, "conspiracy to commit murder for hire with personal injury resulting," is a misnomer. (See PSR ¶ 9.) In contrast, the shorthand description of Counts 3 through 9 is more precise because it captures more of the statutory language. Counts 3 through 9 are described as the "[u]se of interstate commerce facilities with intent that a murder be committed, and as consideration for a promise with agreement to pay." (Id. ¶ 12.) Growing out of Congress' nearly plenary Commerce Clause power, criminal prohibitions against the use of facilities of interstate commerce coupled with certain action and/or certain intent are common in federal criminal law. (See, e.g. ,
Thus, the Court looks first to the statutory language:
Whoever travels in or causes another (including the intended victim) to travel in interstate or foreign commerce, or uses or causes another (including the intended victim) to use the mail or any facility of interstate or foreign commerce, with intent that a murder be committed in violation of the laws of any State or the United States as consideration for the receipt of, or as consideration for a promise or agreement to pay, anything of pecuniary value, or who conspires to do so, shall be fined under this title or imprisoned for not more than ten years, or both; and if personal injury results, shall be fined under this title or imprisoned for not more than twenty years, or both; and if death results, shall be punished by death or life imprisonment, *1360or shall be fined not more than $ 250,000, or both.
The jury was given instructions regarding the elements of the offenses charged, and Petitioner has filed copies of the Government's Proposed Instructions and Amended Proposed Instructions.
First, between the dates charged there was an agreement between two or more persons that a murder be committed in exchange for money or a promise to pay money.
Second, the defendant became a member of the conspiracy knowing of the object and intending to help accomplish it.
Third, one of the members of the conspiracy performed at least one overt act for the purpose of carrying out the conspiracy, with all of you agreeing on a particular overt act that you find was committed; and
Fourth, that the conspiracy, if carried out, would probably cause one or more of the conspirators to travel in or to cause others to travel in interstate commerce, or cause one of more of the conspirators to use or to cause others to use an interstate commerce facility.
(Doc. 1 at 82 (Gov't Amd. Prop'd Instr. No. 22).) The elements of the substantive counts were also defined for the jury:
In order for defendant Dota to be found guilty of these counts, the government must prove beyond a reasonable doubt that first, he travelled from one state to another or used any facility in interstate commerce, as charged; and second, that he acted with the intent that a murder in violation of the laws of California be committed in exchange for money or a promise to pay money.
(Doc. 1 at 87 (Gov't Amd. Prop'd Instr. No. 31).)
Comparing these elements to the definition of a "crime of violence," that is, a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," it becomes clear that the offenses of conviction do not qualify as "crime[s] of violence."
Thus, the elements § 1958 clearly do not require that force be used, or that force be attempted, or that a person be threatened with the use of force. In prosecuting violations *1361of § 1958, the Government need not prove that any person used any degree of force or that any person was injured as a result. Indeed, § 1958 has varying degrees of punishment based upon whether or not injury resulted and whether death resulted. (See
The Government argues that it is not a "realistic possibility" that it would initiate a prosecution for a violation of § 1958 based only on overt acts that do not involve the use of force, such as meetings between co-conspirators, telephone calls, and the exchange of money. (Opp. at 21.) The Government relies upon Gonzales v. Duenas-Alvarez ,
At least two other courts have recently concluded that a violation of § 1958 is a not a "crime of violence" under
*1362Therefore, because the residual clause is unconstitutional, and because the elements clause is inapplicable, Petitioner was wrongly convicted of Count 2, use of a firearm during a crime of violence in violation of
VI. Successive Petition and Procedural Default
Petitioner's successive petition was expressly authorized and his procedural default is excused.
A. Petitioner's Successive Petition Was Authorized by the Ninth Circuit
This is Petitioner's second § 2255 motion. (See CR Doc. 361.) Section 2255 requires that "[a] second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain" either newly discovered evidence or a new, retroactive rule of constitutional law.
B. Petitioner's Procedural Default is Excused
The Government argues that Petitioner's claim is procedurally defaulted.
A motion under
Because the claim Petitioner now raises was novel when he was sentenced in 1992, he has established cause to excuse his default. Case law supporting his argument has only recently developed. It was only after the Supreme Court invalidated the residual clause of the ACCA in Johnson , and certainly after the Supreme Court invalidated the identically worded residual clause of § 16(b), that Petitioner's current claim-that the residual clause of § 924(c)(3)(B) was unconstitutionally vague-lost its novelty. See Johnson ,
Moreover, even after Johnson (but before Dimaya ), lower courts were not all in agreement that § 16(b) should be invalidated. See, e.g., United States v. Gonzalez-Longoria ,
He has also established prejudice. The record reflects, and the Government concedes, that Petitioner suffered prejudice in the form of imposition of a five-year mandatory-minimum sentence of imprisonment that was required to be imposed consecutively. (See Opp. at 8);
Petitioner has also established actual innocence. "To establish actual innocence for the purposes of habeas relief, a petitioner must demonstrate that, in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Alaimalo v. United States ,
Accordingly, there are no procedural obstacles to Petitioner's claim.
VII. Conclusion
For the reasons set forth herein, the Court GRANTS Petitioner's Motion to Vacate, Set Aside, or Correct Sentence. (CV Doc. 1; CR Doc. 390.)
Petitioner's conviction on Count 2, use of a firearm during a crime of violence in violation of
The Judgment and Commitment (CR Doc. 304) is AMENDED to STRIKE the sentence imposed as to Count 2, specifically: "and 60 months on count 2, to be served consecutively to counts 1 and 3 through 9."
Habeas counsel states that if Petitioner is eligible for certain "good time" credit,
WITHIN TEN (10) DAYS OF THE ENTRY OF THIS ORDER, THE BOP IS ORDERED TO NOTIFY PETITIONER RICHARD MARION DOTA AND HIS HABEAS COUNSEL OF PETITIONER'S RELEASE DATE, AS RECALCULATED. SHOULD THAT RECALCULATION YIELD A RELEASE DATE IN THE PAST, THE BOP IS ORDERED TO RELEASE PETITIONER FORTHWITH.
IT IS SO ORDERED.
Notes
Where a docket entry appears in the record in the underlying criminal case only, the Court cites to it as "CR Doc." to distinguish it from citations to the record in the § 2255 case, which are cited to as "Doc.".
The Court quotes the statute as it appears today. The relevant text is unchanged from 1992, although subsections have been added.
Compare
Neither party has filed copies of the jury instructions as given. The Government has not argued that the instructions given were substantially different than those it proposed. The proposed jury instructions accurately state the law.
The Government has, in fact, prosecuted at least one such case. See United States v. Cristobal , No. LACR 13-00094-JLS (C.D. 2013) (Indictment, Doc. 30). In Cristobal , a conspirator unknowingly came into contact with an informant who sought assistance from an undercover federal law enforcement officer.
The Court expresses no opinion regarding whether Petitioner is entitled to good time credit. That determination is made by the BOP.