United States of America v. Travis Ryan Raymond
Crim. No. 14-26 (MJD)
UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA
May 28, 2020
MEMORANDUM OPINION AND ORDER
Robert H. Meyers, Assistant Federal Defender, Counsel for Defendant.
I. Introduction
In Raymond v. United States, 933 F.3d 988, 993 (2019) the Eighth Circuit Court of Appeals vacated this Court‘s Memorandum Opinion and Order dated April 20, 2018 [Doc. No. 71] and remanded the case in order for this Court to reconsider the merits of Defendant‘s ACCA challenge in light of Quarles v. United States, 139 S. Ct. 1872 (2019), and if necessary, to consider others factors affeсting the Rule 60(b)(6) analysis.
On January 24, 2014, a two-count Information was filed charging Defendant Travis Ryan Raymond with Felon in Possession of a Firearm-Armed Career Criminal in violation of
The United States Probation Office prepared a Presentence Investigation Report (“PSR“) advising that Defendant was a Career Offender under the guidelines because he was at least 18 years old at the time he committed the instant offense, that one of the crimes of conviction is a crime of violence and because Defendant has more than two prior felony convictions involving a crime of violence, including: a 2007 conviction for Third Degree Burglary; a 2008 cоnviction for Fleeing a Police Officer; a 2008 conviction for Terroristic Threats; a 2011 conviction for Simple Robbery; and a 2012 conviction for Second Degree Aggravated Robbery. (PSR ¶ 31.)
The PSR further provided that Defendant was an Armed Career Criminal and therefore subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA“),
This Court adopted the guideline calculations set forth in the PSR, which determined the applicable range of imprisonment to be 188 to 235 months.
On Junе 30, 2014, Defendant was sentenced to a term of imprisonment of 180 months on Counts 1 and 2, to be served concurrently. His conviction and sentence were affirmed on appeal. United States v. Raymond, 778 F.3d 716 (8th Cir. 2015).
A. Habeas Petition
On June 17, 2016, Defendant filed a pro se petition under
Defendant did not, however, challenge his concurrent sentence of 180 months on Count 2 in his habeas petition. Nonetheless, he requested that the Court grant him a resentencing hearing and resentence him on Count 2 as well as Count 1 because he believed that without being constrained by the statutory mandatory minimum sentence, the Court would not have sentenced him to 180 months on Count 2.
In the June 2017 Order denying his
Because Defendant could not demonstrate that the sentence imposed on Count 2 was unlawful, the Court found there would be no miscarriage of justice if the relief requested was not granted and denied the motion for relief under
B. Rule 60 (b) Motion
On February 23, 2018, Defendant moved for relief from judgment pursuant to
The Court denied Defendant‘s motion finding Defendant had not shown there would be complete miscarriage of justice if he is not granted relief. In so finding, the Court determined the issue was governed by the Eighth Circuit decisions in Sun Bear v. United States, 644 F.3d 700 (8th Cir. 2011) and in Olten v. United States, 565 F. App‘x 558, 561 (8th Cir. May 15, 2014). Under the reasoning set forth in those cases, Defendant was not entitled to relief because thе sentence for Count 2 was not unlawful, and the same sentence could be reimposed by resentencing the Defendant on Count 1 at or below 120 months on Count 1 concurrent to a 180 sentence on Count 2. Defendant appealed this Order to the Eighth Circuit.
C. Appeal
On appeal, the Eighth Circuit found this Court erred in finding the decision in Sun Bear controlled the outcome of the
In the usual case, we would next turn our attention to thе district court‘s consideration of other Rule 60(b)(6) factors. But here, the district court‘s denial of relief under Rule 60(b)(6) rested solely on the merits of Raymond‘s underlying § 2255 petition, and our analysis of the merits question rests on the proposition that the district court correctly concluded that Raymond no longer qualifies for an ACCA enhancement. That proposition has been called into quеstion by the government, citing the Supreme Court‘s opinion in Quarles v. United States, ___ U.S. ___, 139 S. Ct. 1872, 204 L.Ed.2d 200 (2019), which was issued shortly before we held oral argument on Raymond‘s appeal. Quarles held that the broader definition of “remaining in” burglary qualifies as a violent felony under the ACCA. See id. at 1877. The government argues that Quarles abrogated our previous case law on Minnesota‘s third-degree burglary statute, United States v. McArthur, 850 F.3d 925 (8th Cir. 2017), such that Raymond‘s third-degree burglary conviction once again qualifies as a violent felony. Raymond concedes that Quarles changes the legal landscape, but he argues that nonetheless, Minnesota‘s third-degree burglary statute remains outside the ACCA‘s definition of violent felony. See Van Cannon v. United States, 890 F.3d 656, 664 (7th Cir. 2018) (holding that Minnesota second degree burglary does not qualify as a violent felony because, among other things, “the Minnesota statute doesn‘t require proof of intent to cоmmit a crime at all“).
Under the circumstances, we believe it best to vacate the denial of Rule 60(b)(6) relief and remand to the district court to reconsider the merits of Raymond‘s ACCA challenge in light of Quarles and, if necessary, to consider other factors affecting the Rule 60(b)(6) analysis.
II. Remand
A. Whether burglary under Minnesota law is a violent felony under the ACCA following Quarles
A predicate offense under the ACCA must сategorically be a violent felony - that is that any and all convictions under the criminal statute at issue falls within the definition of violent felony set forth in the ACCA. Mathis v. United States, 136 S. Ct. 2243, 2248 (2016). “Violent felony” is defined in the ACCA as “burglary, arson or extortion.” In listing those crimes, Congress referred only to their generic versions, not to all variants of the offenses. Id. (citing Taylor v. United States, 495 U.S. 575, 598 (1990)). The elements of generic burglary are: 1) an unlawful or unprivileged entry into or remaining in a 2) building or structure 3) with intent to commit a crime. Taylor, 495 U.S. at 599.
To determine whether a prior burglary conviction is for generic burglary, courts are to apply the categorical approach, which requires examination of the elements of the offense of conviction as defined by statute rather than the particular facts underlying the conviction. United States v. Forrest, 611 F.3d 908, 909-10 (8th Cir. 2010). However, if thе statute at issue defines multiple crimes, by proscribing discrete, alternative sets of elements, the statute is considered divisible and the court should apply the “modified categorical approach that reviews the charging document, jury instructions, plea agreement or plea hearing transcript, and comparable judicial records to determine whether the defendant was in fact convicted of a violent felony alternative.” Id. Once
Minnesota defines third-degree burglary as follows: “[w]hoever enters a building without consent and with intent to steal or commit any felony or gross misdemeanor while in the building, or enters a building without consent and steals or commits a felony or gross misdemeanor while in the building . . commits burglary in the third degree.”
In United States v. McArthur, the Eighth Circuit held that the alternatives listed in the Minnesota third-degree burglary statute must be treated as means rather than elements, thus holding the statute is indivisible and subject to the categorical approach. 850 F.3d 925, 938 (8th Cir. 2017).
Next, comparing the elements of generic burglary to the elements оf Minnesota‘s third-degree burglary statute, the court found the statute was broader than generic burglary. The court found that generic burglary requires the defendant to have the intent to commit a crime at the time of the unlawful or unprivileged entry or the initial “remaining in” without consent. Id. at 939. Under Minnesota‘s statute, however, it is not required that the intent to commit a crime exists at the time of entry and/or the initial “remaining in.” Instead, under the second means listed, the intent to commit a crime can arise at any time the defendant remains in the building. Id. As a result, the court held that a conviction under
Recognizing a circuit split on the question of how to assess state “remaining-in” burglary statutes for purposes of the ACCA, the Supreme Court granted certiorari in Quarles v. United States, to address the following questiоn: “whether remaining-in burglary (i) occurs only if a person has the intent to commit a crime at the exact moment when he or she first unlawfully remains in a building or structure, or (ii) more broadly, occurs when a person forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.” 139 S. Ct. 1872, 1875 (2019).1
The Court first considered the definition of common law burglary and noted that by 1986 - when the current version of the ACCA wаs enacted - a majority of States had prohibited unlawfully remaining in a building or structure with the intent to commit a crime. Id. at 1876-77. When the Taylor decision was rendered defining “generic burglary” in 1990, the Court interpreted the term “burglary” in accord with the more expansive understanding of burglary that had become common by 1986, and concluded that generic burglary under
With this background in mind, the Court addressed the argument that “remaining-in burglary occurs only when the defendant has the intеnt to commit a crime at
Put simply, for burglary predicated on unlawful entry, the defendant must have the intent to сommit a crime at the time of entry, but burglary predicated on unlawful remaining, the defendant must have the intent to commit a crime at the time of remaining, which is any time during which the defendant unlawfully remains.
Id. at 1878 (emphasis in original).
The Court noted its conclusion is supported by the States’ laws as of 1986, and as a result “it is not likely that Congress intended generic burglary under § 924(e) to include (i) a burglar who intends to commit a crime at the exact momеnt when he or she first unlawfully remains in a building or structure, but to exclude (ii) a burglar who forms the intent to commit a crime at any time while unlawfully remaining in a building or structure.” Id. (emphasis in original).
Based on its conclusion that generic remaining-in burglary occurs when a defendant forms the intent to commit a crime at any time while unlawfully remaining, the Court found that “the Michigan statute substantially corresponds to or is narrower than generic burglary.” Id. at 1880.
There is no dispute that Quarles abrogated that part of the decision in McArthur that held Minnesota‘s third-degree burglary statute was broader than generic burglary because it did not require an intent to commit a crime the time of entry and/or the initial “remaining in” a building or structure without consent. However, the Quarles decision did not address the issue currently before this Court: whether Minnesota‘s third-degree burglary statute is broader than generic burglary because the second means listed - “[w]hoеver . . . enters a building without consent and steals or commits a felony or gross misdemeanor while in the building . . commits burglary in the third degree” - does not require proof of an intent to commit a crime because not all crimes are intentional.2
This issue was addressed by the Seventh Circuit in a post-Quarles decision in which the court found that a conviction under Minnesota‘s second-degree burglary statute did not qualify as a predicate offense under the ACCA. Chazen v. Marske, 938 F.3d 851 (7th Cir. 2019). In doing so, the court reaffirmed the decision in Van Cannon which found the second alternative under the Minnesota statute “criminalizes conduct that is broader than Taylor‘s definition of generic burglary because it ‘doesn‘t require proof of intent to commit a crime at all - not at any point during the offense conduct.‘” Id., 938 F.3d at 859 (quoting Van Cannon, 890 F.3d at 664). The court further noted that the Quarles decision “did not abrogate Van Cannon‘s conclusion that Minnesota burglary is broader than generic burglary because the state statute does nоt require proof of any intent at any point.” (Id. at 860) (emphasis in original).
In a recent decision from this District, the court found that Minnesota‘s third-degree burglary statute was broader than
This Court finds the decision in Bugh persuasive and similarly finds that Minnesota‘s third-degree burglary statute is broader than generic burglary, because such statute does not require the intent to commit a crime while unlawfully remaining in a building or structure. As a result, Defendant no longer qualifies as an Armed Career Criminal and is therefore not subject to an enhanced sentence under
B. Whether Rule 60(b) Relief is Warranted
In the event the Court finds that Defendant no longer qualifies as an Armed Career Criminal, Defendant argues he is entitled to relief under
The government argues that Defendant is not entitled to relief, but if the Court finds he is not an Armed Career Criminal and exercises its discretion to re-open the
As the government concedes in its brief, the Court has broad discretion as to what remedy to provide in a
In this case, the Court finds that Defendant is entitled to relief under Rule 60(b)(6) as his sentence on Count 1 exceeds the statutory maximum sentence. Further, the record does establish that the sentences on both counts were driven by the applicable statutory mandatory minimum as to Count 1. (Doc. No. 37 (Sent. Tr. at 15, 23).) In addition, because Defendant is no longer an Armed Career Criminal, it appears the applicable guideline range for Count 2 is now 151 to 188 months. Accordingly, the Court will grant Defendant‘s motion and set the matter on for resentencing on both counts.
IT IS HEREBY ORDERED that:
-
Defendant‘s Motion for Relief Pursuant to Rule 60(b)(6) [Doc. No. 67] is GRANTED; - Judgment in the criminal case is VACATED, and Defendant shall be resentenced as soon as reasonably practicable;
- Defendant shall remain in custody pending the resentencing hearing. The Government shall issue a writ for his appearance at resentencing; and
- The U.S. Probation Office shall prepare a supplemental Presentence Investigation Report in advance of the resentencing hearing.
Date: May 28, 2020
s/ Michael J. Davis
Michael J. Davis
United States District Court