United States District Court, D. Nevada
January 3, 2017
UNITED STATES OF AMERICA, Plaintiff,
DAVID DOUGLAS AVERY, Defendant.
R. HICKS UNITED STATES DISTRICT JUDGE.
the court is petitioner David Douglas Avery's motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. ECF No. 203. The United States filed a
response (ECF No. 205), to which Avery replied (ECF No. 206).
The court subsequently ordered supplemental briefing (ECF No.
208), which Avery provided (ECF No. 209). The United States
filed a responsive brief (ECF No. 212), and Avery replied
(ECF No. 213).
court finds that none of the procedural issues that the
United States raises bar Avery's claim for relief. Having
therefore considered his claim's merit, the court finds
that Avery's Nevada robbery convictions are not
categorically violent felonies and that he is not an armed
career criminal within the meaning of 18 U.S.C. §
924(e). His motion will therefore be granted.
§ 2255 petition seeks relief under the U.S. Supreme
Court's recent decision in Johnson v. United
States, 135 S.Ct. 2551 (2015)
(“Johnson” or “Johnson
2015”). In 2003, Avery was convicted of one count
of felon in possession of a firearm. ECF No. 149. His
Presentence Investigation Report (“PSR”) revealed
five felony convictions that it classified as “violent
felonies” under 18 U.S.C. § 924(e)(2)(B): (1) a
Nevada burglary conviction under NRS § 205.060; (2) a
California burglary conviction under California Penal Code
§ 459; and (3) three separate Nevada robbery convictions
under NRS § 200.380. The PSR therefore concluded that
Avery was an “armed career criminal” within the
meaning of 18 U.S.C. § 924(e) and, because he had three
or more prior violent-felony convictions, he was subject to a
fifteen-year minimum sentence under the Armed Career Criminal
Act (“ACCA”). The report calculated a sentencing
guidelines range of 188-235 months' imprisonment, and
Judge David Hagen (“the sentencing court”)
sentenced Avery to 211 months' imprisonment. ECF No. 149.
to sentencing, Avery filed a memorandum objecting to the
PSR's classification of his burglary convictions as
violent felonies, arguing that both the Nevada and California
statutes were overbroad under the categorical approach. ECF
No. 119. Avery did not argue that the three robbery
convictions were not violent felonies under the ACCA. He
instead acknowledged that three violent-felony convictions
are sufficient to trigger the ACCA's sentencing
enhancement but argued that the purportedly misclassified
burglary convictions did not support the PSR's sentencing
recommendation. Id. at 5.
appealed his conviction and sentence to the Ninth Circuit
Court of Appeals, but he did not challenge the classification
of any of his prior convictions as violent felonies or his
resulting classification as an armed career criminal. See
United States v. Avery, opening brief, 2005 WL 926333
(2005). The Ninth Circuit granted Avery a limited remand
because the district court sentenced him before the U.S.
Supreme Court ruled that the sentencing guidelines are
advisory in United States v. Booker, 543 U.S. 220
(2005). United States v. Avery, 152 F. App'x
659, 661 (9th Cir. 2005). On remand, this court was assigned
Avery's case (ECF No. 167) and reinstated his original
sentence (ECF No. 174).
now brings this § 2255 motion, arguing that, after
Johnson, he no longer qualifies as an armed career
to 28 U.S.C. § 2255, a prisoner may move the court to
vacate, set aside, or correct a sentence if “the
sentence was imposed in violation of the Constitution or laws
of the United States, or . . . the court was without
jurisdiction to impose such sentence, or . . . the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). The statute creates a one-year statute of
limitations for such motions. Id. § 2255(f).
When a petitioner seeks relief pursuant to a right recognized
by a U.S. Supreme Court decision, the statute of limitations
runs from “the date on which the right asserted was
initially recognized by the . . . Court, if that right has
been . . . made retroactively applicable to cases on
collateral review . . . .” Id. §
2255(f)(3). The petitioner bears the burden of demonstrating
that his petition is timely and that he is entitled to
relief. Ramos-Martinez v. United States, 638 F.3d
315, 325 (1st Cir. 2011).
Johnson, the Supreme Court held that a portion of
the ACCA's violent-felony definition, often referred to
as the “residual clause, ” was unconstitutionally
vague. 135 S.Ct. at 2557. The ACCA applies to certain
defendants charged with unlawful possession of a firearm
under 18 U.S.C. § 922(g), such as, in Avery's case,
being a felon in possession of a firearm under §
922(g)(1). 18 U.S.C. § 924(e). Normally, a defendant
convicted of unlawful possession of a firearm may be
sentenced to a statutory maximum of ten-years'
imprisonment. Id. § 924(a)(2). However, if a
defendant has three prior convictions that constitute either
a “violent felony” or “serious drug
offense, ” the ACCA enhances the ten-year
maximum sentence to a fifteen-year minimum
sentence. Id. § 924(e)(1).
ACCA defines a violent felony as
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 . .
Id. § 924(e)(2)(B) (emphasis added). The first
clause in this definition is known as either the
“element” or “force” clause, while
the second clause is the “enumerated-offense”
clause. The italicized final clause is the “residual
clause, ” which the Supreme Court declared void for
vagueness in Johnson. When a defendant's prior
conviction categorically matches the force clause or a
generic offense under the enumerated-offense clause, it is
commonly referred to as an “ACCA predicate” or a
Johnson, the Supreme Court subsequently ruled that
its decision announced a new substantive rule that applies
retroactively to cases on collateral review. Welch v.
United States, 136 S.Ct. 1257 (2016). In turn,
defendants that received an ACCA sentence enhancement under
the residual clause could move for relief under § 2255
within one year of the Johnson decision.
Avery argues that he is entitled to relief because the record
does not reveal whether the sentencing court applied the
residual clause in determining that his Nevada robbery
convictions constituted violent felonies. He therefore
argues that the court should resentence him and determine
whether these convictions satisfy either of the surviving
ACCA clauses. Avery devotes the majority of his motion to
arguing that, under Supreme Court cases decided after his
sentencing, his prior convictions no longer categorically
qualify as violent felonies.
the United States devotes its response to arguing that Avery
is not eligible for relief under Johnson. First, it
highlights the fact that Avery did not challenge whether his
robbery convictions were violent felonies before the district
court or the Ninth Circuit. ECF No. 205 at 3-4. As discussed
below, the court will construe this assertion as a
procedural-default argument. The United States also argues
that Avery's claim is time barred because he seeks relief
through pre-Johnson cases. Id. at 6.
Finally, the United States argues that Avery has failed to
meet his burden under § 2255 because he is unable to
conclusively establish that the sentencing court relied on
the residual clause in determining that he was an armed
career criminal. Id. at 5.
the United States' arguments raise threshold issues that
would bar Avery's claim, the court will resolve each one
before addressing whether his Nevada robbery convictions are
violent felonies under the surviving ACCA clauses.
response to Avery's § 2255 motion, the United States
highlighted the fact that Avery did not challenge the
classification of his robbery offenses as violent felonies
before the sentencing court or the Ninth Circuit. ECF No. 205
at 3-4. Although the United States did not address this
fact's legal relevance, Avery interpreted the reference
as a procedural-default argument. ECF No. 206 at 2
(“Yet the government asserts that Avery's request
for resentencing should be denied because Avery's motion
is procedurally defaulted . . . .”). He therefore
devoted a portion of his reply to arguing that his claim is
not defaulted or can otherwise overcome default. Id.
at 4-6. Because this issue arose at the end of the
motion's briefing and was not sufficiently addressed, the
court ordered supplemental briefing. ECF No.
now argues that the United States waived this issue by not
directly raising it in its original response. ECF No. 209 at
2. However, this assertion is contradictory to Avery's
earlier position. Moreover, Avery raised the issue and
prompted the need for additional briefing. The court will
therefore address whether Avery's claim is procedurally
petitioner's claim is procedurally defaulted if he fails
to raise it on direct review. Bousley v. United
States, 523 U.S. 614, 622 (1998); United States v.
Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A
§ 2255 movant procedurally defaults his claims by not
raising them on direct appeal. . . .”). However, he may
overcome default if he can “demonstrate either
‘cause' and ‘actual prejudice, ' or that
he is ‘actually innocent.'” Bousley,
523 U.S. at 622 (internal citations omitted). In regards to
the cause-and-prejudice analysis, a petitioner may establish
cause “where a constitutional claim is so novel that
its legal basis is not reasonably available to counsel . . .
.” Reed v. Ross, 468 U.S. 1, 16 (1984). This
can occur when the Supreme Court overrules its own precedent
or overturns “a longstanding and widespread practice to
which [the] Court has not spoken, but which a near-unanimous
body of lower court authority has expressly approved.”
Id. at 17.
originally argued in his motion to vacate that he could
demonstrate cause because the Court, in Johnson
2015, explicitly overruled two of its prior cases in
which it held that the residual clause was not
unconstitutionally vague. ECF No. 206 at 5. See Johnson
2015, 135 S.Ct. at 2563 (overruling “contrary
holdings” in James v. United States, 550 U.S.
192 (2007) and Sykes v. United States, 564 U.S. 1
(2011)). However, as this court highlighted in its order for
supplemental briefing, Avery's appeal to the Ninth
Circuit occurred before the Supreme Court issued its
decisions in James and Skyes. ECF No. 208
at 4. In apparent response to this fact, Avery now argues
that, at the time of his appeal, every circuit court to have
considered a vagueness challenge to the ACCA, including the
Ninth Circuit, had rejected this argument. ECF No. 209 at 4-5
(citing cases); United States v. Sorenson, 914 F.2d
173, 175 (9th Cir. 1990). He thus contends that Johnson
2015 overruled a “longstanding and widespread
practice” of applying the residual clause, which was
approved by a “near-unanimous body of lower court
authority.” ECF No. 209 at 4.
courts have found that petitioners who were sentenced after
James or Skyes have met the cause prong to
the procedural-default exception. E.g., Johnson
v. United States, No. 4:16-CV-00649-NKL, 2016 WL
6542860, at *2 (W.D. Mo. Nov. 3, 2016); United States v.
Kennedy, No. 112CR414LJOSKO1, 2016 WL 6520524, at *3
(E.D. Cal. Nov. 3, 2016); Dietrick v. United
States, No. C16-705 MJP, 2016 WL 4399589, at *2 (W.D.
Wash. Aug. 18, 2016). Based on the circuit authority that
existed in the years preceding James and
Skyes, this court similarly finds that Avery had
cause for not challenging the ACCA's application to his
robbery convictions on appeal. And because Avery's
designation as an armed career criminal increased his
sentence beyond the 10-year maximum sentence under 18 U.S.C.
§ 924(a)(2), he clearly satisfies the prejudice prong.
See Murray v. United States, No. 15-CV-5720 RJB,
2015 WL 7313882, at *4 (W.D. Wash. Nov. 19, 2015).
the United States has conceded that a petitioner who
“does not, in fact, have three qualifying predicate
offenses” is “‘actually innocent' of
being an armed career criminal . . . .” ECF No. 212 at
Because the court ultimately finds that Avery's Nevada
robbery convictions are not ACCA predicates, he is
“actually innocent” of being an armed career
criminal, and he therefore also meets this procedural-default
United States also argues that Avery's claim for relief
actually relies on pre-Johnson 2015 cases, such as
Descamps v. United States, 133 S.Ct. 2276 (2013) and
Johnson v. United States, 559 U.S. 133 (2010)
(“Johnson 2010”). ECF No. 205 at 6.
The United States contends that, because the Supreme Court
decided these cases several years ago, Avery's petition
does not fall within § 2255's one-year statute of
limitation and is thus time barred.
claim does, in part, rely on these earlier cases. For
example, as discussed below, Avery argues that his Nevada
robbery convictions are no longer a categorical match for the
force clause because the Court, in Johnson 2010,
narrowed the clause's definition of “physical
force” to mean “violent force-that is,
force capable of causing physical pain or injury to another
person.” 559 U.S. at 140 (emphasis in original). Avery
also cites to Descamps for its clarification of the
“modified categorical approach.” E.g.,
ECF No. 203 at 14.
several district courts have rejected the United States'
argument and this court finds it equally unpersuasive.
See United States v. Navarro, No. 2:10-CR-2104-RMP,
2016 WL 1253830 (E.D. Wash. Mar. 10, 2016); Johnson,
2016 WL 6542860. While Avery's claim partially relies on
Johnson 2010 and Descamps, these cases do
not provide him “with a mechanism through which to
collaterally attack his armed career criminal
designation.” Navarro, 2016 WL 1253830, at *7.
Unlike Johnson 2015, neither Johnson 2010
nor Descamps announced a new, substantive, and
retroactive rule required to seek relief under § 2255.
See Welch, 136 S.Ct. at 1264 (discussing the
standard for retroactivity for “new constitutional
rules of criminal procedure”); In re Jackson,
776 F.3d 292, 296 (5th Cir. 2015) (holding that Johnson
2010 does not apply retroactively for § 2255
petitions); Ezell v. United States, 778 F.3d 762,
765 (9th Cir. 2015), cert. denied, 136 S.Ct. 256
(2015) (stating that Descamps did not announce a new
even if Avery was, under these cases, able to challenge
whether his robbery convictions categorically match the force
clause, a court could still have held, absent Johnson
2015, that his convictions satisfied the residual
clause. See Johnson, 2016 WL 6542860, at *2.
Avery's claim does rely on Johnson 2015 for
relief and because he filed his petition within one year of
this decision, it is not time barred.
Whether the sentencing court applied the residual
the United States argues that Avery has failed to establish
that the sentencing court applied the residual clause in
determining that his Nevada robbery convictions were violent
felonies under the ACCA. ECF No. 205 at 6. Because
petitioners bear the burden in § 2555 motions, the
United States argues that this “failure alone precludes
counters that a review of “the legal landscape”
that existed during his sentencing reveals that the
sentencing court could not have relied on the
enumerated-offense or force clause and would have therefore
applied the residual clause. ECF No. 206 at 8. Avery,
however, cites to his earlier analysis of his state
convictions under case law decided after his sentencing.
Id. (citing ECF No. 203 at 15-23). This argument is
therefore inapposite to determining which clause the
sentencing court relied on.
United States similarly argues that the “state of the
law” during Avery's sentencing establishes that the
court would have concluded that Nevada robbery satisfied the
force clause. ECF No. 205 at 7; see United States v.
Melton, 344 F.3d 1021, 1026 (9th Cir. 2003) (holding
that Virginia common-law robbery was an ACCA predicate under
the force clause). The United States further contends that,
“until a few years ago, it was generally taken as a
given that robbery was a violent felony and many defendants,
like Avery, simply conceded the matter.” ECF No. 205 at
8 n. 5.
counters that he does not bear the burden of establishing
that the sentencing court relied on the residual clause
because constitutional error resulted from the fact that the
ACCA provided the court with an unconstitutional sentencing
option. ECF No. 206 at 8-9. He analogizes to longstanding
habeas case law regarding constitutionally-defective jury
[A] general verdict must be set aside if the jury was
instructed that it could rely on any of two or more
independent grounds, and one of those grounds is
insufficient, because the verdict may have rested exclusively
on the insufficient ground. The cases in which this rule has
been applied all involved general verdicts based on a record
that left the reviewing court uncertain as to the actual
ground on which the jury's decision rested.
Zant v. Stephens, 462 U.S. 862, 881 (1983). Avery
argues that, because his sentencing record is silent on which
ACCA clause the court applied, this court should apply a
harmless-error analysis. ECF No. 206 at 9; see Hedgpeth
v. Pulido, 555 U.S. 57, 58 (2008).
district court have adopted this analogy, holding that, when
the record is “unclear on which ACCA clause the
sentencing judge rested a predicate conviction[, ] the
petitioner's burden is to show only that the sentencing
judge may have used the residual clause.” United
States v. Winston, No. 3:01-CR-00079, 2016 WL 4940211,
at *6 (W.D. Va. Sept. 16, 2016) (citing cases); see also
Dietrick, 2016 WL 4399589, at *3 (“[T]he Court
finds that, rather than placing the burden on the Petitioner
in a circumstance where it is unclear whether an
unconstitutional portion of the statute was relied upon, the
‘risk of doubt' is upon the Government.”);
Johnson, 2016 WL 6542860, at *2; United States
v. Wolf, No. 1:04-CR-347-1, 2016 WL 6433151 (M.D. Pa.
Oct. 31, 2016).
the court's independent review of this emerging area of
case law revealed only one court that originally rejected
this reasoning. In United States v. King, the
district court held that,
unlike in the jury-instruction scenario, it is not impossible
to discern the basis for the sentencing judge's
application of the ACCA, even though it was never made
explicit. The reviewing court can look to the circumstances
surrounding the defendant's sentence-clues from the
record and, more importantly, the state of the law at the
time of sentencing-to attempt to discern which clause was
United States v. King, No. 2:11-CR-157, 2016 WL
4379008, at *2 (W.D. Pa. Aug. 17, 2016) vacated after
reconsideration (Sept. 27, 2016). By relying in
part on “the state of the law at the time of
sentencing, ” the King court's now-vacated
decision mirrors the United States' argument regarding
the general perception at the time of Avery's sentencing
that state-law robbery was a violent felony under the force
least one court has directly rejected a similar argument by
the United States. In a recent decision also titled
Johnson v. United States, the district court
examined a petitioner's second-degree burglary
convictions under Missouri law. 2016 WL 6542860, at *1. While
the court had determined that these convictions were ACCA
predicates at the petitioner's sentencing, the record did
not reveal whether the court applied the enumerated-offense
clause or the residual clause. Id.
Similar to the force-clause issue in this case, the United
States argued that the “prevailing case law”
during the petitioner's sentencing established that the
court would have relied on the enumerated-offense clause.
Id. In support of this assertion, the United States
cited Eight Circuit precedent that second-degree burglary
qualified as an ACCA predicate under this clause.
the Johnson district court rejected this argument,
holding that “it [was] equally probable that a court
would rely on the broader, residual clause, which would also
avoid any conflict between existing Supreme Court [precedent]
and Eighth Circuit precedent.” Id. The court
cited to an Eight Circuit decision in which the court of
appeals declined to determine whether second-degree burglary
was a categorical match for generic burglary, instead holding
that the offense would “clearly” satisfy the
residual clause. Id. (citing United States v.
Cantrell, 530 F.3d 684, 694-96 (8th Cir. 2008)).
court finds that examining the state of the law at the time
of a petitioner's sentencing is not conclusive of which
ACCA clause the sentencing court applied. It is possible that
the sentencing court took as a given the perception that
state-law robbery convictions were ACCA predicates under the
force clause. Conversely, it is also plausible that the court
found that the convictions were ACCA predicates because it
was confident that, even if the convictions did not satisfy
the force clause, they would fall within the broader range of
crimes that satisfied the residual clause.
court need not weigh the likelihood of both scenarios because
the court is also persuaded by the line of cases that have
adopted the jury-instruction analogy that Avery asserts.
Because the ACCA presented the sentencing court with two
alternate avenues for finding that Nevada robbery was an ACCA
predicate (i.e., the force and residual clauses), and it is
possible that the court relied on the unconstitutional
alternative, there was constitutional error.
the fact that Avery's “right to due process is at
stake lends additional weight to this conclusion. In the
context of a potential deprivation of such a critically
important right, a showing that the sentencing court might
have relied on an unconstitutional alternative ought to be
enough to trigger inquiry into whether the sentencing
court's consideration of that alternative was ultimately
harmless.” United States v. Ladwig, No.
2:03-CR-00232-RHW, 2016 WL 3619640, at *3 (E.D. Wash. June
context of the ACCA, the sentencing court's possible
reliance on the residual clause would be harmless error only
if Avery's Nevada robbery convictions were still
categorically violent felonies under either the force or
enumerated-offense clause. See id. at *4. The court
will therefore apply the categorical approach to the Nevada
The categorical approach
order to determine whether a defendant's prior
convictions qualify as an ACCA predicate under the
statute's surviving clauses, courts apply a three-step
process set out in Descamps:
At the first step, [courts] 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 . . . . When a statute is
‘overbroad, ' meaning that it criminalizes conduct
that goes beyond the elements of the federal offense,
[courts] turn to step two: determining whether the statute is
‘divisible' or ‘indivisible.' If the
statute is indivisible, [the] 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 [courts] turn to step three-the
‘modified categorical approach.' At this step,
[courts] may examine certain documents from the
defendant's record of conviction to determine what
elements of the divisible statute he was convicted of
Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir.
2015) (internal citations omitted); see also United
States v. Cisneros, 826 F.3d 1190, 1193 (9th Cir. 2016).
The court thus begins this analysis by examining the elements
of Nevada robbery:
Robbery is the unlawful taking of personal property from the
person of another, or in the person's presence, against
his or her will, by means of force or violence or fear of
injury, immediate or future, to his or her person or
property, or the person or property of a member of his
or her family, or of anyone in his or her company at the time
of the robbery. A taking is by means of force or fear if
force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or
(c) Facilitate escape.
The degree of force used is immaterial if it is used to
compel acquiescence to the taking of or escaping with the
property. A 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.
Nev. Rev. Stat. § 200.380(1) (emphasis added).
the categorical approach's first step, Avery argues that
Nevada robbery is overbroad and thus not categorically a
violent felony for two independent reasons. First, he
contends that a defendant may commit Nevada robbery through
the use of minimal force during the crime's commission
and that the statute may therefore be violated through less
than the “violent force” required under
Johnson 2010. Second, Avery argues that the statute
is broader than the force clause because a defendant may
commit robbery by unlawfully taking a victim's property
through the use of force or fear against either the
victim's person or his property.
addressed below, the court agrees that, because NRS §
200.380 explicitly states that the degree of force used to
commit or escape from a robbery is immaterial, Nevada robbery
is overbroad and is not a categorical match for the force
clause. And because this issue alone prevents Avery's
robbery convictions from qualifying as ACCA predicates, the
court will not reach his second argument regarding threats
Section 200.380 can be violated through the use of minimal
Johnson 2010, the Supreme Court addressed the
meaning of the phrase “physical force” in the
force clause and thus what degree of force is required for a
state statute to categorically match the clause. 559 U.S.
133. There, the defendant appealed the district court's
holding that his prior Florida battery conviction was
categorically a violent felony. Id. at 136. As
determined by the Florida Supreme Court,  the statute
could be “satisfied by any intentional
physical contact, ‘no matter how slight.'”
Id. at 138 (emphasis in original) (quoting State
v. Hearns, 961 So.2d 211, 218 (Fla. 2007)). “The
most ‘nominal contact, ' such as a ‘tap on
the shoulder without consent' establishes a
violation.” Id. (internal brackets and
U.S. Supreme Court, however, rejected the government's
argument that “physical force” under the force
clause could entail even the “merest touch.”
Id. at 143. The Court instead held that the phrase
“means violent force-that is, force capable of
causing physical pain or injury to another person.” 559
U.S. at 140 (emphasis in original). Thus, while physical
force “might consist . . . of only that degree of force
necessary to inflict pain-a slap in the face, for
example”-it did not consist of the “nominal
contact” allowed for under Florida battery.
Id. at 143. The state statute was thus overboard in
regards to the force clause and not categorically a violent
Johnson 2010, numerous circuit courts have found
that several state robbery statutes are overbroad because,
like the Florida battery statute, they criminalize the use of
even minimal force rather than only violent force. For
example, in United States v. Parnell, the Ninth
Circuit held that Massachusetts' robbery statute did not
satisfy the force clause because “the degree of
force” used to commit robbery under the statute
“is immaterial so long as it is sufficient to obtain
the victim's property ‘against his
will.'” 818 F.3d 974, 978 (9th Cir. 2016) (quoting
Commonwealth v. Jones, 283 N.E.2d 840, 843 (Mass.
court found that Massachusetts case law regarding robbery
convictions for “purse snatching” demonstrated
that the statute criminalized “minimal, nonviolent
force.” Id. at 980. In one such case,
“the defendant simply grabbed the victim's
pocketbook from her arm.” Id. (citing
Jones, 283 N.E.2d at 842). Although no struggle
ensued and the victim barely realized her bag was being
taken, the state Supreme Court upheld the robbery, reasoning
that the “snatching” involved the use of
“some actual force.” Id. (citing
Jones, 283 N.E.2d at 845). Because Massachusetts law
considers the use of minimal, non-violent force as a
violation of its robbery statute, it was overbroad in regards
to the force clause. Id. at 981; see also United
States v. Gardner, 823 F.3d 793, 803 (4th Cir. 2016)
(finding that North Carolina common-law robbery is overbroad
because, under state precedent, “the degree of force
used is immaterial, so long as it is sufficient to compel the
victim to part with his property.”); United States
v. Eason, 829 F.3d 633, 641 (8th Cir. 2016) (finding
Arkansas' robbery statute overbroad).
several district courts within this circuit have found state
robbery statutes overbroad if state law considers as
immaterial the degree of force used to commit the crime.
E.g., United States v. Dunlap, 162
F.Supp.3d 1106, 1114 (D. Or. 2016) (finding that Oregon's
robbery in the third degree statute, ORS § 164.395, only
requires minimal force and is thus overbroad based on a state
case in which the defendant was convicted under the statute
after he snatched the victim's purse from her hands
without her even “feel[ing] a tug or ‘much of
anything.'”); United States v. Kleckner,
No. CR-09-032-JLQ, 2016 WL 6089820, at *3 (E.D. Wash. July
11, 2016) (finding that Washington State's robbery
statute, RCW 9A.56.190, is overbroad because it states that
“the degree of force” used to unlawfully retain a
person's property “is immaterial.”).
Avery argues that the use of even minimal force during a
robbery violates NRS § 200.380, citing to the
statute's plain language: “The degree of force used
is immaterial if it is used to compel acquiescence to the
taking of or escaping with the property.” Nev. Rev.
Stat. § 200.380(1). Avery compares this language to the
Massachusetts case law in Parnell, arguing that the
Ninth Circuit's holding should control in this case. ECF
No. 213 at 10. He cites to several Nevada Supreme Court cases
that he argues demonstrate that robbery convictions involving
only nominal force have been upheld. ECF No. 203 at 22-23;
ECF No. 213 at 10-11.
the court ultimately agrees that NRS § 200.380 is
overbroad, the cases that Avery cites are inapposite because
they involve either (1) a robbery committed through fear of
great bodily injury or (2) force that cannot be considered
nominal even under Johnson 2010. See Robertson
v. Sheriff, Clark County, 565 P.2d 647 (Nev. 1977)
(finding that money taken from a cash register during an
armed robbery at a bar was taken from the
“presence” of the bartender, even though he hid
“in the men's room out of fear.”);
Mangerich v. State, 572 P.2d 542 (Nev. 1977)
(upholding a robbery conviction of a masked robber who told
the victim “she would not be hurt” if she
complied with his demands because this exchange “could
cause a reasonable [store] clerk to fear for her
safety.”); Jefferson v. State, 840 P.2d 1234
(Nev. 1992) (finding sufficient evidence of force during a
purse snatching that resulted in a struggle with the victim,
leaving her with two bruises (i.e., force sufficient to cause
injury)); State v. Snyder, 172 P. 364 (Nev. 1918)
(upholding a robbery conviction when the defendant poisoned
the victim, which is undoubtedly violent
court has, however, identified two Nevada Supreme Court cases
that illustrate NRS § 200.380's application and the
immateriality of the force used to commit Nevada robbery. In
Daniels v. State, the defendant approached an
undercover detective, who was disguised “as an
intoxicated vagrant, ” and attempted to show the
detective a necklace. 110 P.3d 477, 478 (Nev. 2005). When the
detective stated that he was not interested in the necklace,
the defendant pushed his hand, presumably the one holding the
necklace, into the detective's face, “using enough
force to push [the detective's] head back[, ]”
while simultaneously taking the detective's wallet.
Id. Although the detective testified that the
incident made him “nervous” due to prior
undercover experiences, there is no indication in the case
that the force was sufficient to either injure the detective
or cause him physical pain. Id. The defendant argued
that, because “he did not attack” the detective
“with his hands or fists[, ]” the force used was
insufficient to constitute Nevada robbery. Id. at
480. The Court rejected this argument, merely quoting NRS
§ 200.380's language regarding the immateriality of
force used to commit or escape from a robbery. Id.
at 480 (quoting Nev. Rev. Stat. § 200.380(1)).
in Valdovinos v. State, an unpublished disposition,
the Court affirmed a robbery conviction after the defendant
argued that he used insufficient force to take a gun, the
personal property stolen from one of the victims. 381 P.3d
672, 2012 WL 5349406, at *1 (Nev. 2012). The victim testified
that the defendant “yanked, pulled, or pushed [her] arm
as he snatched the gun from her outstretched hands.”
Id. While the Court acknowledged that “the
degree of force used on the victim was not
substantial, ” it reiterated that “the
degree of force is immaterial under” NRS §
200.380. Id. (emphasis added).
the court addresses the United States' argument that NRS
§ 200.380 does require more than nominal force because
“the force used must be sufficient to ‘compel
acquiescence' to the unlawful taking of property against
the victim's will.” ECF No. 212 at 6. This argument
seemingly interprets the statute to criminalize nominal force
only when the victim acquiesced, due to fear or force, to the
taking of his property rather than when the defendant takes
the property by force against the victim's will. This
narrow interpretation, however, is at odds with the Nevada
Supreme Court's application of the statute in both
Daniels and Valdovinos, where the victims
did not acquiesce to the robbers taking their personal
property. The former case involved pickpocketing coupled with
nominal force, while the latter involved nominal force used
to yank the property out of the victim's hand.
because the United States argues that it “cannot
conceive” of “how a perpetrator could use force
or fear to compel acquiescence to” an unlawful taking
of property (ECF No. 212 at 6), its interpretation of NRS
§ 200.380 would render the statutory language at issue
meaningless. In other words, if a robber can only use
violent force to “compel acquiescence, ”
then it would be unnecessary for the statute to state that
“[t]he degree of force used is immaterial . . .
.” Nev. Rev. Stat. § 200.380(1). Based on the
statute's plain text and its application in
Daniels and Valdovinos, the court finds
that NRS § 200.380 criminalizes any degree of force a
robber uses to take a victim's personal property against
his or her will. The statute is therefore indistinguishable
from the Massachusetts robbery statute in Parnell.
See Parnell, 818 F.3d at 979 (“[T]he degree of
force is immaterial so long as it is sufficient to obtain the
victim's property ‘against his will.'”).
the use of even minimal force during the commission of or
escape from a robbery violates NRS § 200.380, the
statute is overbroad in regards to the force
Section 200.380 is not divisible
statute is divisible if it “list[s] elements in the
alternative, and thereby define[s] multiple crimes.”
Mathis v. United States, 136 S.Ct. 2243, 2249
(2016). A statute that is worded disjunctively is not
necessarily divisible. Id.; see also Rendon v.
Holder, 764 F.3d 1077, 1086 (9th Cir. 2014). Here, NRS
§ 200.380 is not divisible as to the force used to
commit a robbery because the statute considers a taking
“by means of force or violence or fear of injury”
as a single element, without alternative crimes defined for
the degree of force used. Because the statute is both
overbroad and indivisible, the court may not proceed to the
modified categorical approach and the inquiry ends.
court recognizes that, as was documented in Avery's
Presentence Investigation Report, he did use violent force
during each of his three Nevada robberies. However, the U.S.
Supreme Court has made clear that “[h]ow a given
defendant actually perpetrated the crime- what [the Court
has] referred to as the ‘underlying brute facts or
means' of commission-makes no difference; even if his
conduct fits within the generic offense [or the force
clause], the mismatch of elements saves the defendant from an
ACCA sentence.” Mathis, 136 S.Ct. at 2251
(internal citation omitted). Although acknowledging and
agreeing that the categorical approach's application
raises “concerns, ” the Supreme Court has
reiterated that, “whether for good or for ill, the
elements-based approach remains the law.” Id.
court is bound by that law and, based on the analysis above,
finds that Avery's robbery convictions are not
categorically violent felonies. Accordingly, he lacks a
minimum of three ACCA predicate convictions and is not an
armed career criminal within the meaning of 18 U.S.C. §
924(e). The court will therefore grant Avery's motion,
vacate his sentence pursuant to 28 U.S.C. § 2255, and
considered Avery's extensive criminal history, including
the violent nature of his Nevada robbery convictions, the
court resentences Avery to ten years' imprisonment, the
statutory maximum sentence for a conviction under 18 U.S.C.
§ 922(g). See 18 U.S.C. § 924(a)(2). The
court also re-imposes the terms of supervised release that
this court imposed in Avery's amended judgment, dated
April 21, 2006 (ECF No. 176).
Avery has been imprisoned under his current sentence for more
than ten years, he is eligible for immediate release. The
court will therefore order the Federal Bureau of Prisons to
release Avery on January 18, 2017, unless the court orders
otherwise. Within seven days of the date of this order, the
United States may submit a brief showing cause as to why
Avery should not be immediately released. Additionally,
either party may, within seven days of this order, submit a
brief showing cause as to why the court should hold a
THEREFORE ORDERED that petitioner David Douglas Avery's
motion to vacate, set aside, or correct his sentence pursuant
to 28 U.S.C. § 2255 (ECF No. 203) is GRANTED.
FURTHER ORDERED that Avery's amended sentence (ECF Nos.
174, 176), which re-imposed Avery's original sentence
(ECF Nos. 146, 149), is VACATED.
FURTHER ORDERED that Avery is resentenced to ten years'
FURTHER ORDERED that the terms of supervised release imposed
in this court's amended judgment (ECF No. 176) are
FURTHER ORDERED that the Federal Bureau of Prisons shall
release Avery on January 18, 2017, unless the court has
FURTHER ORDERED that, within seven days of the date of this
order, the United States may submit a brief showing cause as
to why Avery should not be immediately released.
FURTHER ORDERED that, within seven days of the date of this
order, either party may submit a brief showing cause as to
why the court should hold a sentencing hearing.
This citation refers to the court's
 As discussed below, courts apply the
“categorical approach” “[t]o determine
whether a state statute of conviction meets the ACCA's
definition of ‘violent felony' . . . .”
United States v. Dixon, 805 F.3d 1193, 1195 (9th
Cir. 2015). Under this analysis, a sentencing or reviewing
court “may ‘look only to the statutory
definitions'-i.e., the elements-of a defendant's
prior offenses, and not ‘to the particular facts
underlying those convictions.'” Descamps v.
United States, 133 S.Ct. 2276, 2283 (2013) (quoting
Taylor v. United States, 495 U.S. 575, 600 (1990)).
“If the relevant statute has the same elements as the
‘generic' ACCA crime, then the prior conviction can
serve as an ACCA predicate; so too if the statute defines the
crime more narrowly . . . .” Id. (citing
Taylor, 495 U.S. at 599).
 While Avery did object to his two
state burglary convictions being classified as violent
felonies, the sentencing court would have needed to determine
that his Nevada robbery convictions were also violent
felonies in order to find that Avery had at least three prior
violent-felony convictions and thereby apply the ACCA's
 Because the United States solely
addressed the threshold issues in its response to Avery's
motion, the court requested that the United States also
address the categorical approach in its supplemental
 Traditionally, “actual innocence
means factual innocence, not mere legal insufficiency.”
Bousley v. United States, 523 U.S. 614, 623 (1998);
see also Sawyer v. Whitley, 505 U.S. 333, 340 (1992)
(“A prototypical example of ‘actual
innocence' in a colloquial sense is the case where the
State has convicted the wrong person of the crime.”).
However, the Supreme Court has also applied the concept
“to mean ‘innocent' of the death
penalty.” Id. at 343. The Ninth Circuit has so
far declined to determine “whether a petitioner may
ever be actually innocent of a noncapital sentence .
. . .” Marrero v. Ives, 682 F.3d 1190, 1193
(9th Cir. 2012) (emphasis added). Nonetheless, the United
States contends that the actual-innocence exception applies
to the ACCA (ECF No. 212 at 10), a position accepted by
several district courts in this circuit. E.g.,
Murray v. United States, No. 15-CV-5720 RJB, 2015 WL
7313882, at *4 (W.D. Wash. Nov. 19, 2015) (citing Summers
v. Feather, 119 F.Supp.3d 1284, 1290 (D. Or.
 Several of the cases cited in this
order refer to Johnson 2010 as Johnson I
and to Johnson 2015 as Johnson II.
 Following the petitioner's
subsequent motion for reconsideration, the King
court later vacated its own order without explanation.
See United States v. Wolf, No. 1:04-CR-347-1, 2016
WL 6433151, at *4 (M.D. Pa. Oct. 31, 2016). While the
decision is no longer valid case law, the court is including
its reasoning in order to place the United States'
arguments within the context of Avery's jury-instruction
 The court's research also revealed
an Eleventh Circuit panel decision that held that,
“[i]f the district court cannot determine whether the
residual clause was used in sentencing and affected the final
sentence-if the court cannot tell one way or the other-the
district court must deny the § 2255 motion.”
In re Moore, 830 F.3d 1268, 1273 (11th Cir. 2016).
Days later, a separate Eleventh Circuit panel reached the
opposite conclusion. In re Chance, 831 F.3d 1335,
1341 (11th Cir. 2016). However, neither panel addressed the
jury-instruction analogy that Avery asserts. See United
States v. Winston, No. 3:01-CR-00079, 2016 WL 4940211,
at *5-6 (W.D. Va. Sept. 16, 2016) (comparing these two
 Burglary is an enumerated offense
under the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii).
 While the United States has only
addressed whether Avery's Nevada robbery
convictions are categorically violent felonies, Avery
requests that the court also determine whether his Nevada and
California burglary convictions are violent
felonies. However, as Avery has acknowledged, the sentencing
court analyzed his burglary convictions under the
enumerated-offense clause. Avery, opening brief,
2005 WL 926333, at *16. The United States does not challenge
this representation. ECF No. 205 at 8 n. 6. Because the
sentencing court's burglary analysis did not invoke the
residual clause, its holding is unaffected by Johnson
2015. This court therefore finds no basis for
re-applying the categorical approach to these two
 In comparing the force clause or the
elements of a generic offense to the elements of a state
statute, federal courts are bound by a state Supreme
Court's interpretation of its state's laws.
Johnson 2010, 559 U.S. at 138.
 Avery argues that Robertson
and Mangerich demonstrate that Nevada robbery can be
accomplished without even an implicit threat; however, the
cases' facts demonstrate that the defendants' actions
placed the victims in objectively reasonable fear, which the
defendants used to unlawfully take the personal
 While the defendant and his
co-conspirators later used additional force and “the
fear of force” against the victim, the Court's
statement regarding the immateriality of force used in the
robbery was specifically in response to the defendant
“yanking” the gun from the victim's hand.
See Valdovinos v. State, 381 P.3d 672, 2012 WL
5349406, at *1 (Nev. 2012).
 The United States does not
argue that Nevada robbery, when committed through force or
fear of injury to the victim's person, is a
categorical match for generic extortion under the
enumerated-offense clause. It instead contends that, where
“force or violence or fear of injury is directed toward
the ‘property' of another, the crime
constitutes generic extortion.” ECF No. 212 at 4
(emphasis added); see United States v.
Becerril-Lopez, 541 F.3d 881, 891-92 (9th Cir. 2008)
(finding that a violation of California's robbery statute
that involves a threat to the victim's property
rather than his person is not categorically generic
robbery under U.S.S.G § 2L1.2, but that “it would
necessarily constitute generic extortion”). This
argument, however, is a response to Avery's contention
that NRS § 200.380 is overbroad because it allows for
threats to property. ECF No. 213 at 12. Because the
court need not reach this separate property argument, the
court will not address generic extortion.
 The United States has not argued
that NRS § 200.380 is divisible in regards to the degree
of force the defendant uses.