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United States v. Carter

United States District Court, D. Hawaii

May 23, 2016

SCOTT MICHAEL CARTER 01, Defendant. Civil No. 16-00046 JMS-KSC




         Before the court are (1) Defendant Scott Michael Carter’s (“Defendant”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”), Doc. No. 79; and (2) his corresponding Motion for Release on Bail, seeking release while the court considers the § 2255 Motion, Doc. No. 81. Defendant argues that his 132-month sentence, imposed on August 27, 2007 under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), is unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015), and Descamps v. United States, 133 S.Ct. 2276 (2013).

         Based on the following, the Motion for Release on Bail is DENIED. The court, however, requests supplemental briefing from the parties as to whether any exception might apply to the one-year limitation period in 28 U.S.C. § 2255(f).[1]


         On April 5, 2007, pursuant to a March 30, 2007 Memorandum of Plea Agreement (“Plea Agreement”), Defendant pled guilty to two Counts of a March 29, 2007 Indictment: (1) conspiracy to distribute, and to possess with intent to distribute, methamphetamine, in violation of 21 U.S.C. §§ 846, 841(a)(1) & 841(b)(1)(B); and (2) felon in possession of a firearm subsequent to three convictions for violent felonies, in violation of 18 U.S.C. §§ 921(g)(1) & 924(e)(1). Doc. Nos. 37, 38. As to the felon-in-possession Count, the Indictment charged Defendant with having three prior felony convictions for first degree burglary under Hawaii law. Doc. No. 27. In the Plea Agreement -- which was accepted by the court on August 20, 2007, Doc. No. 53 -- Defendant stipulated factually and legally to the following regarding his prior burglary convictions:

(a) Factual stipulation as to prior burglary convictions: Defendant hereby admits to the following facts, such that it will not be necessary to prove the factual allegations contained in the Notice [of United States’ Intent to Seek Enhanced Penalties Under 18 U.S.C. § 924(e)]:
(1) All of the facts and averments describing defendant’s prior burglary convictions, as contained and recited in the Notice, are correct;
(2) These prior burglary convictions are defendant’s convictions and are final at the present time and were also final as of the time period charged in the Indictment;
(3) The charged crimes therein, namely Burglary in the first degree, are felony offenses under Hawaii state law, for which the maximum punishment is ten (10) years imprisonment; and
(4) As alleged in the respective charging documents therein, the burglaries in these prior burglary convictions all involved residences.
3. Given defendant’s stipulation in the preceding paragraph, defendant is an “armed career criminal” within the meaning of Guideline 4B1.4 of the United States Sentencing Commission Guidelines with respect to Counts 1 and 3 of the Indictment.[2]

Doc. No. 37, Plea Agreement at 3-4.

         Under the ACCA, if a defendant is convicted of a firearms offense and has three or more prior convictions of “a violent felony or a serious drug offense, or both, ” the defendant is subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as follows:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year . . . that --
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]

18 U.S.C. § 924(e)(2). The first clause in § 924(e)(2)(B)(ii) (“is burglary, arson, or extortion, involves use of explosives”) is referred to as the “enumerated offenses clause, ” while the second clause (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”) is referred to as the “residual clause.”

         Given the stipulations in the Plea Agreement, the court sentenced Defendant on August 20, 2007 as an armed career criminal to 132 months imprisonment.[3] Defendant did not appeal the August 27, 2007 Judgment, and it became final for purposes of 28 U.S.C. § 2255(f)(1) when the appeal period expired.[4] See, e.g., United States v. Schwartz, 274 F.3d 1220, 1223 (9th Cir. 2001) (holding that a judgment becomes final and the limitations period under § 2255(f)(1) begins to run “upon the expiration of the time during which [he or] she could have sought review by direct appeal”).

         Under existing law at the time that Defendant was sentenced in August 2007, Defendant’s prior burglary convictions under Hawaii Revised Statutes (“HRS”) § 708-810 could have been considered to be § 924(e)(2) “violent felonies” under either (or both) the enumerated offense clause or the residual clause when applying the categorical/modified categorical approach derived from Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). See, e.g., United States v. Grisel, 488 F.3d 844, 851-52 & n.8 (9th Cir. 2007) (en banc) (remanding for application of modified categorical approach after determining that Oregon burglary statute was not a categorical generic burglary, and noting that the residual clause might otherwise apply) (decided June 5, 2007, shortly before Defendant’s sentencing).

         After Defendant’s sentence became final, the Supreme Court issued the two opinions central to Defendant’s § 2255 Motion. On June 20, 2013, the Supreme Court decided Descamps, “which more clearly than earlier cases limited the extent to which courts may satisfy the modified categorical approach by looking at the 'facts’ of prior convictions.” United States v. Marcia-Acosta, 780 F.3d 1244, 1254 (9th Cir. 2015). Descamps “clarified that the modified categorical approach serves a 'limited function, ' 'effectuating the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant’s [prior] conviction.’” Marcia-Acosta, 780 F.3d at 1249 (quoting Descamps, 133 S.Ct. at 2283)). “Divisibility” is a key question “because a conviction under an indivisible, overbroad statute can never serve as a predicate [ACCA] offense.” Medina-Lara v. Holder, 771 F.3d 1106, 1112 (9th Cir. 2014) (citing Descamps, 133 S.Ct. at 2286). Among other matters, Descamps “resolve[d] a Circuit split on whether the modified categorical approach applies to statutes . . . that contain a single, 'indivisible’ set of elements sweeping more broadly than the corresponding generic offense . . . hold[ing] that it does not.” 133 S.Ct. at 2283 (footnote omitted).[5]

         And on June 26, 2015, the Supreme Court decided Johnson, which invalidated the ACCA’s residual clause as unconstitutionally vague. 135 S.Ct. at 2557-58. Johnson reasoned that because the residual clause “both denies fair notice to defendants and invites arbitrary enforcement by judges, ” id. at 2557, “imposing an increased sentence under the residual cause . . . violates the Constitution’s guarantee of due process.” Id. at 2563.

         Given Johnson, Defendant filed his § 2255 Motion on February 4, 2016, seeking re-sentencing, arguing that his original sentence was based on an improper determination that he is an armed career criminal under the ACCA.[6]Specifically, Defendant contends that, absent the residual clause, his first-degree burglary convictions under HRS § 708-810 do not qualify as predicate violent felonies under the ACCA. See Doc. No. 82, Def.’s Mem. at 12. Defendant seeks to apply ...

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