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United States v. Carter

United States District Court, D. Hawaii

July 18, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT MICHAEL CARTER (01), Defendant. Civ. No. 16-00046 JMS-KSC

          ORDER(1) DENYING DEFENDANT’S MOTION TO VACATE UNDER 28 U.S.C. § 2255, AND (2) GRANTING A CERTIFICATE OF APPEALABILITY

          J. Michael Seabright Chief United States District Judge.

         I. INTRODUCTION

         Before the court is 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. Defendant argues that his 132-month sentence, imposed on August 27, 2007 under the Armed Career Criminal Act (“ACCA”), is unconstitutional. The § 2255 Motion relies primarily on Johnson v. United States, 135 S.Ct. 2551 (2015) (invalidating the ACCA’s “residual clause” in 18 U.S.C. § 924(e)(2)(B)(ii)), and Descamps v. United States, 133 S.Ct. 2276 (2013) (explaining methodology used to determine applicability of ACCA).[1] Based on the following, the § 2255 Motion is DENIED.

         II. FACTUAL AND LEGAL BACKGROUND

         On April 5, 2007, pursuant to a 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) (Count One); 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) (Count Three). Doc. Nos. 27, 37-38. As to Count Three, the Indictment charged Defendant with having three prior felony convictions for first degree burglary under Hawaii law. Doc. No. 27. And 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 Count[] . . . 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 often called the “enumerated offenses clause.” 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.”[3]

         Given the stipulations in the Plea Agreement, the court sentenced Defendant on August 20, 2007 as an armed career criminal to 132 months imprisonment.[4] The term of imprisonment consisted of 132 months as to Count One (conspiracy to distribute, and to possess with intent to distribute, methamphetamine), and 132 months as to Count Three (felon in possession of a firearm), with both terms to be served concurrently. See Doc. No. 54, Judgment at 3. The statutory maximum for Count One was “not less than 5 years and not more than 40 years.” 21 U.S.C. §841(b)(1)(B). That is, the maximum sentence for the drug conspiracy conviction was 40 years, and Defendant was sentenced within that statutory maximum.

         Defendant did not appeal the corresponding August 27, 2007 Judgment, and it became final on September 10, 2007 for purposes of 28 U.S.C. § 2255(f)(1) when the appeal period expired.[5] 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”).

         At the time of Defendant’s sentencing in August 2007, burglary convictions under Hawaii Revised Statutes (“HRS”) § 708-810 could have been deemed § 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).

         Well after Carter’s sentence became final, the Supreme Court issued the two opinions forming the basis of 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.’” Id. 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.[6] Descamps clarified that sentencing courts must perform a divisible-indivisible analysis before applying the modified categorical approach.

         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, arguing that his August 2007 sentence was based on an improper determination that he is an armed career criminal under the ACCA. After the § 2255 Motion was filed, the Supreme Court held that Johnson applies retroactively to cases properly-brought on collateral review. See Welch, 136 S.Ct. at 1266. Defendant contends that, absent the residual clause, he is not an armed career criminal under the ACCA because his first-degree burglary convictions under HRS § 708-810 do not qualify as predicate violent felonies.[7] See Doc. No. 82, Def.’s Mem. at 12. Defendant seeks to apply the modified categorical approach as explained in Descamps and subsequent Ninth Circuit caselaw (e.g., Rendon and Almanza-Arenas), and as the Supreme Court recently reaffirmed in Mathis.

         The court decides the § 2255 Motion, which presents purely legal issues, without a hearing under Local Rule 7.2(d). The court has considered the Memorandum in Support, the Opposition, the Reply, as well as several supplemental briefs and Notices of Supplemental Authority. See Doc. Nos. 82, 86, 88, 90-91, 93-95, 98-100.

         III. DISCUSSION

         A. Johnson is Irrelevant

         In striking the ACCA’s residual clause as vague, Johnson emphasized that it “does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA’s] definition of a violent felony.” 135 S.Ct. at 2563. And so, if a sentencing court did not rely on the residual clause -- i.e., if a court relied on qualifying prior crimes under the elements/force or enumerated offenses clauses (or on prior “serious drug offenses”) -- then a defendant’s ACCA sentence is unaffected by Johnson. See, e.g., Welch, 136 S.Ct. at 1268 (“It may well be that the Court of Appeals on remand will determine on other grounds that the District Court was correct to deny Welch’s motion to amend his sentence. For instance, the parties continue to dispute whether Welch’s strong-arm robbery conviction qualifies as a violent felony under the elements clause of the Act, which would make Welch eligible for a 15-year sentence regardless of Johnson.”); United States v. Sykes, 809 F.3d 435, 439 (8th Cir. 2016) (“[B]ecause burglary is an enumerated offense under § 924(e)(ii), the imposition of an increased sentence need not rest on [the residual clause].”); Dawkins v. United States, 809 F.3d 953, 954 (7th Cir. 2016) (“Dawkins cannot show that his sentence violates Johnson . . . [f]or the sentence was based not on the residual clause but on prior convictions for carjacking, an element of which is the use or threatened use of force.”); In re Gordon, ___ F.3d ___, 2016 WL ...


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