UNITED STATES of America, v. Tarik BUTLER, Defendant.
Criminal No. 12-46 (CKK) Civil Action No. 16-1187 (CKK)
United States District Court, District of Columbia.
Signed 05/25/2017
256 F. Supp. 3d 133
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
MEMORANDUM OPINION
COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE
Presently before the Court are Defendant Tarik Butler’s [31] Revised Motion Under
I. BACKGROUND
On February 23, 2012, an indictment was filed charging Mr. Butler with unlawful distribution of 28 grams or more of cocaine base in violation of
This matter proceeded to sentencing on October 10, 2012. At that time, a person convicted of a
The Court sentenced Mr. Butler to a term of imprisonment of 15 years (180 months), in accordance with the Rule 11(c)(1)(C) plea agreement, on both counts followed by a term of supervised release of 5 years (60 months). In imposing this sentence, the Court found that Mr. Butler was subject to a 15-year mandatory minimum in light of his prior convictions. Judg. in Cr. Case, Stmt. of Reasons at 1; Sent’g Hrg. Tr. (Oct. 10, 2012), at 3:10-13, ECF No. [29] (“He also pled to Count 1 of an Information, which was unlawful possession of a firearm by a felon with three convictions. And that has a statutory 15-year mandatory minimum to life with a maximum fine of $250,000.”). Specifically, Mr. Butler had: a 1995 conviction for attempted distribution of cocaine in the District of Columbia, PSR ¶ 41, ECF No, [17]; and two 2000 convictions for assault with a dangerous weapon in the District of Columbia, id. ¶¶ 44, 45.3 See Sent’g Hrg. Tr. (Oct. 10, 2012), at 9:1-15. As reflected in the Presentence Investigation Report, Mr. Butler was subject to a mandatory minimum term of imprisonment of 15 years pursuant to the ACCA,
With respect specifically to Mr. Butler’s arguments regarding the applicability of certain provisions of the U.S.S.G., the Court notes that the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) extended the reasoning of Johnson to the U.S.S.G., finding that the similarly worded residual clause of U.S.S.G. § 4B1.2(b) also is unconstitutional under the void-for-vagueness doctrine. United States v. Sheffield, 832 F.3d 296, 312-13 (D.C. Cir. 2016). However, after briefing was complete on the instant motion, the Supreme Court in Beckles v. United States, — U.S. —, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), held that the residual clause of U.S.S.G. § 4B1.2(a)(2) is not void for vagueness because the U.S.S.G. are not subject to a vagueness challenges under the due process clause. Id. at 890. The Supreme Court noted that its holding did not render the U.S.S.G. immune from constitutional scrutiny, including scrutiny under the due process clause. Id. at 895-96. Rather, the majority opinion of the Supreme Court held specifically that the void-for-vagueness doctrine was inapplicable to the advisory U.S.S.G. Id. at 896. The Supreme Court explained: “Unlike the ACCA, ... the advisory Guidelines 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. at 892.
Given that Beckles was decided after the instant motion was briefed, neither party has discussed the import, if any, of the Supreme Court’s decision in Beckles to Mr. Butler’s conviction and sentence. The Court has determined that it need not reach this issue of the applicability of the U.S.S.G. at this juncture. Rather, the Court’s analysis shall focus on whether Mr. Butler’s prior offenses constitute violent felonies under the ACCA. For the reasons described below, the Court finds that Mr. Butler was improperly sentenced to a mandatory minimum sentence under the ACCA and, accordingly, must be resentenced. As such, the Court shall allow
II. LEGAL STANDARD
Under
III. DISCUSSION
A. Procedural Requirements
The Government first argues that Mr. Butler’s claims are not properly before this Court for several reasons. Generally, a criminal defendant may bring a § 2255 within one year of the date upon which his or her judgment of conviction becomes final or within one year of certain other events which essentially reset the clock on the one-year period. See generally
First, the Government asserts that Mr. Butler has not demonstrated that this Court actually relied on the residual clause of the ACCA with respect to Mr. Butler’s prior convictions. While it is true that the record in this case does not conclusively show that the Court relied on the residual clause of the ACCA rather than the elements clause at the time of sentencing, this does not bar Mr. Butler’s claim. First, the Court does not accept the Government’s premise that a criminal defendant must make an affirmative showing that the sentencing court relied on the residual clause rather than the alternative elements clause of the ACCA in order to assert a claim under Johnson (2015). Indeed, this Court accepts the proposition, as recognized by other district courts in this jurisdiction and courts of other jurisdictions, that it is sufficient for a criminal defendant to show that a sentencing judge might have relied on the residual clause in order to proceed. See United States v. Wilson, No. CR 96-0157 (ESH), 249 F.Supp.3d 305, 311-12, 2017 WL 1383644, at *3 (D.D.C. Apr. 18, 2017) (Huvelle, J.) (collecting cases).
As District Judge Paul L. Friedman recognized, to hold otherwise would create an “absurd result.” United States v. Booker, No. CR 04-0049 (PLF), 240 F.Supp.3d 164, 169, 2017 WL 829094, at *4 (D.D.C. Mar. 2, 2017). At the time of Mr. Butler’s sentencing, a court was not required to specify which clause it was relying on to find that the particular offenses qualified as violent felonies under the ACCA and U.S.S.G. Id. at 168, 2017 WL 829094, at *3. Nor is it likely that a sentencing judge would have seen the need to make such a specification several years (in this case, approximately two and a half years) before the Supreme Court declared the residual clause unconstitutional. Further, prior convictions that did not meet the requirements of the elements clause often satisfied the residual clause. Id. As such, to impose the restriction advanced by the Government, certain criminal defendants would be barred from raising an otherwise cognizable claim under Johnson (2015) because the sentencing judge did not specify which clause she was relying on at a time when that was not required and it could not have been foreseen that such a specification was necessary. As such, the Court accepts that Mr. Butler must show only that this Court may have relied on the residual clause in order to proceed.
As a practical matter, it is clear from the record that the Court imposed the 15-year term of imprisonment as a mandatory minimum in light of the prior convictions in accepting the Rule 11(c)(1)(C) plea agreement as to the sentence. As discussed further below, the Court considered two of Mr. Butler’s prior offenses as “violent felonies” under the ACCA. The Court did not specify in reaching this determination whether it was relying on the elements clause or the unconstitutional residual clause. As such, the Court has determined this is a sufficient showing in order for Mr. Butler’s claims under Johnson (2015) to proceed.
2. Timeliness of Mr. Butler’s Claims
The Government next argues that Mr. Butler’s claims are untimely because the claims actually are based on the Supreme Court’s decision in Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“Johnson (2010)”), not Johnson (2015), and, as such, should have been raised within one year of the former decision. In Johnson (2010), the Supreme Court held that the term “physical force” as included in the elements clause of the ACCA means “violent force—that
Here, the Government is correct that Mr. Butler relies in part on the Supreme Court’s decision in Johnson (2010) in his argument that his D.C. assault with a dangerous weapon convictions do not qualify as “violent felonies” under the elements clause of the ACCA or “crimes of violence” under the U.S.S.G. in light of the definition of “physical force.” However, Mr. Butler advances this argument because those convictions cannot qualify as “violent felonies” under the residual clause in light of the Supreme Court’s decision in Johnson (2015). Indeed, “‘[i]t is only as a result of 2015 Johnson’s voiding of the residual clause that [defendant] could reasonably argue that he is no longer eligible for the ACCA enhancement.’” Wilson, 249 F.Supp.3d at 313, 2017 WL 1383644, at *4 (quoting Diaz v. United States, No. 1:11-cr-0381, 2016 WL 4524785, at *5 (W.D.N.Y. Aug. 30, 2016)). Accordingly, the Court finds that Mr. Butler’s arguments are sufficiently based on the right that was newly recognized by the Supreme Court in Johnson (2015) and, because the motion was filed within one year of that decision, the claims were timely raised.
3. Procedural Default
The Government argues that Mr. Butler’s claims are barred by the procedural default rule which “generally precludes consideration of an argument made on collateral review that was not made on direct appeal, unless the defendant shows cause and prejudice.” United States v. Hughes, 514 F.3d 15, 17 (D.C. Cir. 2008). “The procedural default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law’s important interest in the finality of judgments.” Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
Here, it is undisputed that Mr. Butler did not previously raise his claims. However, Mr. Butler asserts that he has demonstrated cause and prejudice sufficient to overcome the procedural default rule. Further, Mr. Butler notes he is not requesting that the Court vacate his conviction, but rather that the Court simply correct his sentence. The Government asserts that Mr. Butler has procedurally defaulted his claims because: (1) he agreed as part of the plea that he would likely be considered an Armed Career Criminal and agreed at sentencing that the prior convictions were “violent felonies”; and (2) he failed to argue before this Court or on appeal that the residual clause was unconstitutionally vague or that his prior convictions would not satisfy the requirements of the elements clause. While the Government raises each of these arguments, it only fleshes out its argument that Mr. Butler should have raised his Johnson (2010) claims regarding the definition of a violent felony under the elements clause either before this Court or on direct appeal because these claims were not so novel at the time of sentencing that their legal basis was not reasonably available. Indeed, the Government’s position is that Mr. Butler has not demonstrated “cause” for failing to raise those arguments before this time. See Govt.’s Opp’n at 12-13. The Court finds that Mr. Butler has not procedurally defaulted his claims for the reasons described herein.
As an initial matter, the Court emphasizes that Mr. Butler’s failure to raise his claims related to the elements clause of the ACCA can only be considered in the context of the timing of Mr. Butler’s plea and sentencing, when the residual clause was
Turning first to the issue of cause, the Supreme Court explained that “futulity cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.’” Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). However, “a claim that ‘is so novel that its legal basis is not reasonably available to counsel’ may constitute cause for a procedural default.” Id. at 622, 118 S.Ct. 1604 (quoting Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984)). First, as the D.C. Circuit noted, “it is fair to say that no one—the government, the judge, or ... [the defendant]—could reasonably have anticipated Johnson [ (2015)].” Redrick, 841 F.3d at 480. Indeed, on two separate occasions following Mr. Butler’s sentencing, the Supreme Court upheld the constitutionality of the ACCA’s residual clause before ultimately finding it void for vagueness in Johnson (2015). See generally Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011); James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007). Moreover, the Supreme Court has unequivocally announced that the rule in Johnson (2015) is applicable retroactively on collateral review. The Court agrees with other district courts in this jurisdiction that until the Supreme Court’s decision in Johnson (2015), there was no reasonable basis to challenge the constitutionality of the residual clause and this is sufficient to establish cause. See Booker, 240 F.Supp.3d at 170, 2017 WL 829094, at *5 (Friedman, J.); United States v. Brown, No. CR 09-358 (EGS), 249 F.Supp.3d 287, 292-93, 2017 WL 1383640, at *4 (D.D.C. Apr. 12, 2017) (Sullivan, J.); Wilson, 249 F.Supp.3d at 311-12, 2017 WL 1383644, at *3 (Huvelle, J.).
Turning next to the issue of prejudice, a defendant must show that “‘there is a reasonable probability that, but for [the errors], the result of the proceeding would have been different.’” United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C. Cir. 2003) (quoting United States v. Dale, 140 F.3d 1054, 1056 n.3 (D.C. Cir. 1998)). Here, Mr. Butler asserts that he was improperly subjected to a 15-year mandatory minimum sentence under the ACCA that, in light of the Supreme Court’s holding in Johnson (2015), is not applicable to him. Certainly, if Mr. Butler’s claims have merit, he has sufficiently demonstrated that he was prejudiced by being improperly sentenced to a mandatory minimum term of imprisonment. The Court finds this is sufficient to establish prejudice for the purposes of the procedural default rule. However, whether Mr. Butler was actually prejudiced requires a review of the merits of his claims.
B. Merits of Mr. Butler’s § 2255
Here, Mr. Butler argues that he no longer qualifies for an enhanced sentence under the ACCA in light of the Supreme Court’s holding in Johnson (2015). The record in this case does not clarify which clause of the ACCA this Court relied on in applying the 15-year mandatory minimum. As previously mentioned, the Court considered three of Mr. Butler’s prior con- victions:
The elements clause, codified at
In determining whether a particular offense fits within this definition, the Court must apply the “categorical approach.”4 The categorical approach requires the Court to look only at the statutory definition of a particular prior offense and not at the particular facts underlying the convictions. Descamps v. United States, 570 U.S. 274, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013). As the D.C. Circuit explained:
[I]n asking whether a prior crime qualifies as a violent felony, we look at the state or federal statute under which a defendant has been convicted and ask simply whether the elements of the prior crime meet the Act’s definitions of a violent felony. If a prior conviction is based on a statute that sweeps more broadly than this federal definition—let us say, a conviction could be based on a minor battery—such a conviction cannot qualify as a violent felony under the force [or elements] clause.
Redrick, 841 F.3d at 482. In sum, the Court must employ a two-step process. First, the Court must determine the elements of the state law offense at issue. Second, the Court must determine whether the force required to commit the state law offense is equivalent to the force required by
- “an attempt, with force or violence, to injure another, or a menacing threat, which may or may not be accompanied by a specific intent to injure;”
- “the apparent present ability to injure the victim;”
- a general “intent to commit the acts which constitute the assault;” and
- “the use of a dangerous weapon in committing the assault.”
Spencer v. United States, 991 A.2d 1185, 1192 (D.C. 2010) (quoting Williamson v. United States, 445 A.2d 975, 978-79 (D.C. 1982)). This first three elements constitute a simple assault in D.C. and the fourth element is unique to the crime of ADW.5 Id. Mr. Butler advances two arguments as to why D.C. ADW does not satisfy the elements clause of the ACCA: (1) D.C. ADW can be violated without the use of violent physical force; and (2) D.C. ADW can be violated with a reckless mens rea. The Court shall address each in turn.
With respect to the requisite use of force, the Government concedes that D.C. simple assault does not require the use of violent force contemplated by the ACCA because it may be carried out through the mere use of a menacing threat. As such, the Court focuses its analysis on the additional requirement of “the use of a dangerous weapon in committing the assault.” While “[n]ot every crime becomes a crime of violence when committed with a deadly weapon,” United States v. Rede-Mendez, 680 F.3d 552, 558 (6th Cir. 2012), the Court is required to look at the elements of this particular offense. Mr. Butler relies primarily on the definition of a dangerous weapon in D.C., which Mr. Butler asserts is expansive, in support of his argument.
The D.C. Court of Appeals recognized that any object “may constitute a dangerous weapon under an aggravated assault statute when used in a manner likely to cause great bodily harm, and that an object’s dangerousness is ordinarily a question for the jury.” In re D.T., 977 A.2d 346, 350 (D.C. 2009). Mr. Butler then argues that some objects that would be considered “dangerous weapons” under the statute, like “poison, a tranquilizer, a barrier, and hazardous chemicals,” do not require the use of violent, physical force. Def.’s Supp. Mot. at 27. To bolster this position, Mr. Butler points to two cases in which lye was considered a dangerous weapon for the purposes of a conviction under the D.C. ADW statute, see Tatum v. United States, 110 F.2d 555, 556 (D.C. Cir. 1940); Sloan v. United States, 527 A.2d 1277, 1280 (D.C. 1987), and one in which a spray bottle of gasoline was considered a dangerous weapon, Savage-El v. United States, 902 A.2d 120, 124-25 (D.C. 2006).
The Government asserts that Mr. Butler’s arguments regarding the requisite use of force for the offense of D.C. ADW offense are foreclosed by the D.C. Circuit’s recent opinion in United States v. Redrick, 841 F.3d 478 (D.C. Cir. 2016). In Redrick, the D.C. Circuit held that the Maryland offense of armed robbery qualifies as a violent felony under the elements clause. Id. at 485. Similar to the crime at issue here, the D.C. Circuit found in Redrick that robbery in Maryland is not a violent felony. Id. at 482. However, the D.C. Circuit found that the Maryland offense of armed robbery required the “use of a dangerous or deadly weapon.” Id. at 484. Relying on this point, the D.C. Circuit distinguished the Maryland crime from the Massachusetts crime of armed robbery which the United States Court of Appeals for the Ninth Circuit previously held did not constitute a violent felony under the
The D.C. Circuit also focused on the type of weapon that would constitute a dangerous or deadly weapon for the purposes of the crime of Maryland armed robbery. The Maryland offense indeed has a more extensive definition that that provided for D.C. ADW. Specifically, a “deadly or dangerous weapon” for the crime of Maryland armed robbery is defined as an instrument:
“(1) designed as ‘anything used or designed to be used in destroying, defeating, or injuring an enemy, or as an instrument of offensive or defensive combat’; (2) under the circumstances of the case, immediately useable to inflict serious or deadly harm (e.g., unloaded gun or starter’s pistol useable as a bludgeon); or (3) actually used in a way likely to inflict that sort of harm (e.g., microphone cord used as a garrote).”
Id. at 484 n.6 (quoting Brooks v. State, 314 Md. 585, 552 A.2d 872, 880 (1989)) (emphasis added). In Redrick, the D.C. Circuit rejected the defendant’s argument that the conduct covered swept too broadly because the weapon at issue could include poison, an open flame, or a lethal bacteria. Id. at 484. The D.C. Circuit noted first that it “doubt[ed] these weapons could be administered without at least some level of physical force,” and ultimately found “the hypotheticals ... too farfetched to give ... [the court] pause.” Id.
The D.C. Circuit’s opinion in Redrick is instructive in this Court’s analysis for a number of reasons. First, both Maryland robbery and D.C. assault (without the use of a weapon) are not violent felonies under the elements clause of the ACCA because they do not require the requisite use of physical force. Second, both Maryland robbery and D.C. assault are necessarily crimes against a person. See id. Third, both Maryland armed robbery and D.C. ADW have an element requiring the use of a dangerous weapon (the Maryland offense also allows for use of a “deadly” weapon). Finally, while the Maryland offense of armed robbery has a lengthier definition of what constitutes a “deadly or dangerous weapon,” the last provision of the definition is similar to the definition used for the D.C. ADW offense. Indeed, the Maryland definition includes an instrument “actually used in a way likely to inflict that sort of harm [serious or deadly] (e.g., microphone cord used as a garrote),” and the D.C. definition is an object “used in a manner likely to cause great bodily harm.”
Mr. Butler makes two arguments as to why the D.C. Circuit’s decision in Redrick is distinguishable. First, Mr. Butler asserts that the D.C. definition of a dangerous weapon sweeps more broadly than that of the Maryland definition. The Court rejects this argument based on the third clause of the Maryland definition which the Court finds substantially similar to the D.C. definition as described above. Second, Mr. Butler asserts that that there is a
Turning next to the issue of the requisite mens rea, the parties agree that reckless conduct is sufficient to support a conviction for D.C. ADW. Vines v. United States, 70 A.3d 1170, 1180 (D.C. 2013), as amended (Sept. 19, 2013) (“[A] conviction for ADW can be sustained by proof of reckless conduct alone.”). However, the parties disagree as to whether a violent felony under the elements clause includes offenses that can be accomplished recklessly, meaning without the intentional use, attempted use, or threatened use of violent force. This appears to be an open issue in this jurisdiction.
Three Supreme Court cases addressing similarly worded provisions of two different statutes are of particular importance in reaching a decision on this issue. In 2004, the Supreme Court addressed whether a conviction in Florida for driving under the influence of alcohol and causing serious bodily injury classified as a “crime of violence” under
In 2014, the Supreme Court addressed the meaning of the phrase “the use ... of physical force,” as referenced in
In 2016, the Supreme Court again discussed
Two district court judges in this jurisdiction have sided with Mr. Butler’s argument that a statute requiring only the reckless application of force does not meet the requirements of the ACCA’s elements clause. Indeed, District Judge James E. Boasberg recently accepted this argument
Specifically, as noted by Judge Sullivan, the Supreme Court previously defined “force” as used in the ACCA and in
“Thus, ‘the lower mens rea sufficient for a predicate misdemeanor is not necessarily sufficient for a violent felony.’” Id. (quoting Sabetta, No. 00-CR-135-S-PAS, 221 F.Supp.3d at 223, 2016 WL 6167454, at *9). The Court is persuaded by this line of reasoning.
The Court agrees that a state statute that requires the mere reckless application of force, such as D.C. ADW, does not meet the requirements of the elements clause of the ACCA. The Court notes that in reaching this conclusion, it reaches a contrary holding to some other courts addressing this issue. See, e.g., United States v. Howell, 838 F.3d 489, 501-02 (5th. Cir. 2016), cert. denied — U.S. —, 137 S.Ct. 1108, 197 L.Ed.2d 212 (2017) (holding that the mental state of recklessness is sufficient for an offense to qualify as a crime of violence under U.S.S.G. § 4B1.2(a)(1)); United States v. Fogg, 836 F.3d 951, 956 (8th Cir. 2016), cert. denied No. 16-7767, — U.S. —, 137 S.Ct. 2117, 198 L.Ed.2d 203, 2017 WL 468441 (U.S. May 15, 2017) (finding that reckless conduct constitutes the use of force under the ACCA). For the reasons described, the Court has determined that Mr. Butler has only one, not three, qualifying convictions and, as such, is entitled to be resentenced because he was improperly subjected to a 15-year mandatory minimum sentence pursuant to
IV. CONCLUSION
For the foregoing reasons, the Court finds that Mr. Butler is entitled to have his sentence corrected. Specifically, the Court finds that Mr. Butler’s two prior convictions for the D.C. offense of ADW do not qualify as violent felonies under the ACCA and, as such, Mr. Butler should not have been subject to the 15-year mandatory minimum sentence as part of the plea agreement in light of the Supreme Court’s holding in Johnson (2015). The Court shall reserve ruling on Mr. Butler’s arguments related to the U.S.S.G. until resentencing. Accordingly, Mr. Butler’s [31] Revised Motion Under
An appropriate Order accompanies this Memorandum Opinion.
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE