***U.S. MARSHALS SERVICE ACTION REQUIRED***
BEFORE THE COURT is Defendant’s Motion to Vacate Sentence in Light of Johnson v. United States, — U.S.-,
BACKGROUND
On July 10, 2013, Defendant was charged with Felon in Possession of Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). ECF No. 1. On November 7, 2013, the Government filed an Information Superseding Indictment, charging Defendant with the same offense in addition to various forfeiture allegations. ECF No. 26. Defendant pleaded guilty to the charge on November 7, 2013. ECF Nos. 27 and 29. In the plea agreement, the Government agreed to recommend “that the Court impose a sentence within the applicable sentencing guideline range ultimately determined by the Court.” ECF No. 27 at 6-7. Defendant was “free to make recommendations in regards to length of incarceration and placement in any Bureau of Prisons (“BOP”) program(s) for which BOP determines he is eligiblé.” Id. at 7. Further, the plea agreement noted that
[i]n return for the concessions that the United States has made in this Plea Agreement, the Defendant agrees to waive the right to appeal the sentence if the Court imposes a prison term of no longer than 63 months, imposes a term of supervised release of no longer than 3 years, waives the imposition of a fine, and impose a $100 penalty assessment.
Id.- at 8. The plea agreement also noted that “[n]othing in this Plea Agreement shall preclude the United States from opposing any post-conviction motion for reduction of sentence or other attack of the conviction or sentence, including, but not limited to, proceedings pursuant to 28 U.S.C. § 2255.” Id.
In preparation for sentencing, the United States Probation Office compiled a Pre-sentence Investigation Report. ECF No. 34. The Probation Officer concluded that Defendant’s Base Offense Level was 20, based on the application of U.S.S.G. § 2K2.1(a)(4)(A). Id. at 7. The Probation Officer found that Defendant triggered a heightened Base Offense Level because Defendant has been previously convicted of a felony that constituted a “crime of violence.” Id. Defendant had a prior conviction for second-degree robbery, at the time a “crime of violence” under U.S.S.G. § 4B1.2(a)(2). Id. After a four level enhancement. for possessing ammunition in connection with another felony offense and a three level downward adjustment for acceptance of responsibility, the Probation Office recommended that Defendant’s Total Offense Level was 21. Id. at 7-8.
Defendant was sentenced on February 5, 2014. ECF No. 40. At the sentencing hearing, the Court rejected the proposed four level enhancement and calculated Defendant’s Total Offense Level to be 17. ECF No. 42 at 1. When coupled with Defendant’s Criminal History Category of VI, the Sentencing Guidelines recommended an imprisonment range of 51 to 63 months. Id. The Court sentenced Defendant to 51 months of imprisonment. ECF No. 41 at 2.
On June 26, 2015, the Supreme Court decided Johnson v. United States, — U.S. -,
On May 19, 2016, Defendant filed a Motion to Vacate Sentence in Light of Johnson v. United States, — U.S. -,
ISSUE
Defendant argues that Johnson, in holding that the residual clause of the ACCA was an unconstitutionally vague violation of the Due Process Clause, necessarily invalidated the identical residual clause in U.S.S.G. § 4B1.2(a)(2), resulting in Defendant’s having been unconstitutionally and improperly sentenced on the basis of having a prior conviction for a “crime of violence.” See generally ECF No. 48. Defendant requests resentencing under a correct Guideline range. Id. at 29.
DISCUSSION
I. 28 U.S.C. § 2255
'[1] 28 U.S.C. § 2255(a) states that [a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation' of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence,
28 U.S.C. § 2255(a). The claimed- error of law must be “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States,
II, Johnson v. United States
Defendant argues that Defendant’s “sentence was imposed in violation of the Constitution” following Johnson v. United States. ECF No. 48 at 20. The Government contends (1) that Defendant’s motion is based on Descamps v. United States, — U.S.-,
A. Legal Basis for Defendant’s Petition
The Government argues that, as Defendant cannot ’show that his predicate conviction was determined to be a “crime of violence” under the U.S.S.G. § 4B1.2(a)(2) residual clause, Defendant’s motion is based on Descamps. ECF No. 53 at 4. Defendant argues that his “petition is based on Johnson, not Descamps.” ECF No. 54 at 13.
The Court agrees.with Defendant. Prior to Johnson, Defendant’s second-degree robbery conviction could have been predicate “crimes of violence” under the U.S.S.G. § 4B1.2(a)(2) residual clause. See Taylor v. United States,
Further, Johnson, unlike Descamps, provided Defendant with a mechanism through which to collaterally attack the career offender enhancement. Concerning Descamps, the Ninth Circuit held that “Descamps did not announce a new rule, and even if it did, Descamps is not a constitutional case.” Ezell v. United States, 778 F,3d 762, 765-66 (9th Cir.2015). .As such, Descamps did not provide Defendant with a means to challenge his enhanced Base Offense Level, even if such a challenge would have been unsuccessful considering the residual clause. Johnson, on the other hand, declared the similar ACCA residual clause unconstitutional under the Due Process Clause. Johnson,
The Court concludes that Defendant’s petition is properly based on Johnson. The Court cannot assume, without an explicit finding, that the Court relied upon other approaches to conclude that Defendant’s underlying conviction was a predicate “crime of violence.”
B. Retroactivity to the Sentencing Guidelines
Defendant argues that Johnson is a “new substantive constitutional rule that applies retroactively on collateral review to Guidelines cases.” ECF No. 48 at 23. The Government, while agreeing that Johnson is a new rule, argues that “Defendant may not raise retroactively on collateral review the contention that his Guidelines calculation was erroneous because section 4B1.2 is unconstitutionally vague.” ECF No. 53 at 14.
In Johnson, the Supreme Court held that the residual clause of the ACCA was an unconstitutionally vague sentencing statute in violation of the Due Process Clause. Johnson,
Under. Teague v. Lane,
Additionally, “a hew rule should be applied retroactively if it requires the observance of ‘those procedures that ... are implicit in the concept of ordered liberty.’ ” Id. (quoting Mackey, 401 .U.S. at,693, 91
Defendant argues that the Government’s position is contrary to Welch v. United States, — U.S.-,
This Court finds the reasoning in United States v. Dean,
In Reinar-Rodriguez II, the defendant challenged a 16-level enhancement under U.S.S.G. § 2L1.2(b)(l)(A)(ii) on the basis that Grisel had determined that his Utah second-degree burglary conviction was no longer a qualifying “crime of violence.”
As Reinar-Rodriguez II, on collateral review, retroactively applied a rule holding that a certain offense was no longer an ACCA “crime of violence” to a corresponding Sentencing Guidelines provision, the Court must, apply the same reasoning to U.S.S.G. § 4B1.2(a)(2). Following Welch, Johnson is a substantive rule retroactive to cases on collateral review. See Welch,
The Government argües that' Johnson \s not a substantive rule in the Guidelines context as the Career Offender enhancement does not raise the statutory maximum sentence. However, the Supreme Court recently found that the “new rule” announced in Miller v. Alabama,
Additionally, the Government contends that application of the Sentencing Guidelines are merely a procedural component' of sentencing. However, the Supreme Court has noted that “[a]lthough the district court has discretion to depart from the Guidelines, the court ‘must consult those Guidelines and take them into account when sentencing.’” Molina-Martinez v. United States, — U.S.-,
C. Defendant’s Underlying Conviction and U.S.S.G. § 2K2.1(a)(4)(A)
At sentencing, the Court calculated Defendant’s Base Offense Level to be 20 under U.S.S.G. § 2K2.1(a)(4)(A) for having “committed any part of the instant offense subsequent to sustaining one felony convic
As, following Johnson, the residual clause is no longer an available means of finding Defendant’s second-degree robbery conviction to be a “crime of violence,” the Court must apply the Des-camps, “ ‘three-step process’ to determine whether a prior conviction is” a “crime of violence.” Lopez-Valencia v. Lynch,
'•At the -first step, we compare the elements of the state offense to the elements of the generic offense defined by federal law. If this “categorical approach” reveals that the elements of the state crime are the same as or narrower than the elements of the federal offense, then the state crime is a categorical match and every conviction under that statute qualifies ás a [violent] felony. When a statute is “overbroad,” meaning that it criminalizes conduct that goes beyond the elements of the federal offense, we turn to step two: determining whether the statute is “divisible” or “indivisible.” If the statute is indivisible, “our inquiry ends, because a conviction under an indivisible, overbroad statute can never serve as a predicate offense.” Only when a statute is overbroad and divisible do we turn to step three—the “modified categorical approach.” At this step, we may examine certain documents from the defendant’s record of conviction to determine what elements of the divisible statute he was convicted of violating.
Id. at 867-68.
Although robbery is not explicitly included among the U.S.S.G. § 4B1.2(a)(2) enumerated offenses, see U.S.S.G. § 4B1.2(a)(2) (listing burglary of a dwelling, arson, extortion, and offenses involving the use of explosives), the Government argues that “[r]obbery is. specifically enumerated as a crime of violence in the commentary to § 4B1.2.” EOF No. 53 at 17. The Government . alternatively contends that second-degree robbery qualifies as a “crime of violence” as “generic extortion.” Id. at 18. Further, the Government argues that second-degree robbery is a “crime of violence” as the offense has “as an element the use, attempted use, or threatened use of physical 'force against the person of another.” See id.. at 19 (citing U.S.S.G. § 4B1.2(a)(l)).
1. Robbery as Enumerated Offense
The Government argues that robbery is an enumerated offense under U.S.S.G. § 4B1.2(a)(2). Id. Under the § 4B1.2 Application Notes, “ ‘[c]rime of violence’ includes ... robbery.” U.S. Sentencing Guidelines Manual § 4B1.2 cmt. n.l.
The Ninth Circuit has defined “generic robbery” as “aggravated larceny, containing at least the elements of misappropriation of property under- circumstances involving immediate danger to the person.” United States v. Becerril-Lopez,
A person commits robbery when he or she unlawfully takes personal property from the person of another or in his, or her presence against his or her will by the use or threatened use of immediate force, violence, or fear of injury to that person or his or her property or the person or property of anyone. Such force or fear must be used to obtain or retain possession of the property, or to prevent or, overcome resistance to the taking; in either of which cases the degree of force is immaterial. Such taking constitutes robbery whenever it appears that, although the taking was fully completed without the knowledge of the person from whom taken, such knowledge was prevented by the use of force or fear.
ROW 9A.56.190.
In Washington State, an individual can commit second-degree robbery by “unlawfully tak[ing] personal property from the person of another ... against his will by the use or threatened use of immediate force ... to that person or his property.” RCW 9A.56.190 (emphasis added). As such, Washington State second-degree robbery criminalizes physical force against property, and is consequently overbroad as, under the Ninth Circuit’s definition of “generic robbery,” the offense must involve “immediate danger to the person.” Beeerril-Lopez,
Under the Descamps second step, the Court must determine whether the Washington State second-degree robbery statute is divisible or indivisible. Des-camps,
Concerning second-degree robbery, the Washington Pattern Jury Instructions do not require a jury to unanimously agree on what or whom the defendant targeted the use or threat of physical force. See 11 Wash. Prae., Pattern Jury Instr. Crim. WPIC 37.04 (3d ed.) (“That the taking was against the person’s will by the defendant’s use or threatened use of immediate force, violence, or fear of injury to that person [or to that person’s property]”) (emphasis in original). As such, a jury is only required to unanimously conclude that a defendant used or threatened to use force against something, be it a person or that person’s property. Washington State second-degree robbery, therefore, contains alternative means, as opposed to alternative elements, and is indivisible.
2. Extortion as Enumerated Offense
The Government notes, however, that the Court’s analysis does not end at “robbery.” ECF No. 53 at 24. Relying on Ber-cerril-Lopez, the Government contends that hypothetical robbery scenarios that fall outside the generic definition of “robbery” are categorical matches for generic “extortion,” a separate enumerated offense under U.S.S.G. § 4B1.2(a)(2). Id. Defendant argues that Washington State second-degree robbery is “not a categorical match for generic extortion.” ECF No. 48 at 16.
“Generic extortion” is defined as “obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.” Scheidler v. Nat’l Org. for Women, Inc.,
The Government urges the Court to follow Becerril-Lopez, which found that, under California law, a conviction involving a threat “not encompassed by generic robbery ... would necessarily constitute generic extortion.” Becerril-Lopez,
As noted above, the Washington State second-degree robbery statute is indivisible insofar as the force can be directed against a person or property. Therefore, second-degree robbery cannot be a predicate “crime of violence” as “extortion.”
The Government argues that Washington State second-degree robbery satisfies' the “physical force” clause under U.S.S.G. § 4B1.2(a)(l). ECF No. 53 at 25.' The Supreme Court has defined “physical force” as “violent force—that is; force capable of causing physical pain or injury to another person.” Johnson v. United States,
4. Conclusion
The Court finds that Washington State second-degree robbery is not a “crime of violence” as “generic robbery,” “generic extortion,” or an offense involving “physical force.” As such, Washington State second-degree robbery cannot be a predicate “crime of violence” under either U.S.S.G. § 4B1.2(a)(l) or (2). Accordingly, Defendant is entitled to habeas relief under 28 U.S.C. § 2255(a).
CONCLUSION
Having found that Defendant is entitled to relief on his Johnson v. United States ground for relief, IT IS HEREBY ORDERED:
1. Defendant’s Motion to Vacate Sentence in Light of Johnson v. United States, — U.S.-,135 S.Ct. 2551 ,192 L.Ed.2d 569 (2015), ECF No. 48, is GRANTED.
2. Defendant’s sentence imposed pursuant to U.S.S.G. § 2K2.1(a)(4)(A), ECF No. 41, is VACATED.
3: Defendant will be resentenced on the underlying conviction on August 16, 2016, at 2:00 p.m., in Spokane, Washington before the undersigned. Defendant must be present at the resen-tencing hearing.
4. An expedited Amended Presentence Investigation Report shall be prepared within thirty (30) days of the date of this Order reflecting this Court’s ruling and without application of a U.S.S.G. § 2K2.1(a)(4)(A) based on Defendant’s prior conviction for second-degree robbery. Any objections or memoranda regarding sentencing shall be filed within fourteen (14) days of the filing of the Amended Presentence Investigation Report and no later than seven days prior to resentencing.
The District Court Clerk is hereby directed to enter this order and provide copies to counsel, the U.S. Probation Office, and the U.S. Marshals Service.
Notes
. Grisel overruled United States v. Reina-Rod-riguez (Reina-Rodriguez I),
. The Government relies upon Hawkins v. United States,
. Alternatively, specific crimes enumerated only in die U.S.S.G. § 4B1.2 application notes are merely example offenses that previously qualified as "crimes of violence” under the now-unconstitutional residual clause. See United States v. Soto-Rivera,