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United States v. Avery

United States District Court, D. Nevada

January 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID DOUGLAS AVERY, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before 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.[1] 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).

         The 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.

         I. Background

         Avery's § 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.

         Prior 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.

         Avery 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).

         Avery now brings this § 2255 motion, arguing that, after Johnson, he no longer qualifies as an armed career criminal.

         II. Legal standard

         Pursuant 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).

         III. Discussion

         In 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).

         The 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[2] the force clause or a generic offense under the enumerated-offense clause, it is commonly referred to as an “ACCA predicate” or a “predicate offense.”

         After 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.

         Here, 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.[3] 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.

         Conversely, 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.

         Because 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.

         A. Procedural default

         In its 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. 208.[4]

         Avery 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 defaulted.

         A 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.

         Avery 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.

         Numerous 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).

         Moreover, 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 10.[5] 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 exception.

         B. Time bar

         The 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”).[6] 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.

         Avery's 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.

         Nonetheless, 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 rule).

         And 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.

         Because 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.

         C. Whether the sentencing court applied the residual clause

         Finally, 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 relief.” Id.

         Avery 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.

         The 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.

         Avery 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 instructions:

[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).

         Several 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).

         Conversely, 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 applied.

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).[7] 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 clause.[8]

         At 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[9] 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. Id.

         Nonetheless, 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)).

         The 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.

         This 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.

         Moreover, 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 28, 2016).

         In the 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 statute.[10]

         D. The categorical approach

         In 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 violating.

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).

         Addressing 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.

         As 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 against property.

         1. Section 200.380 can be violated through the use of minimal force

         In 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, [11] 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 citations omitted).

         The 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 felony.

         Since 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. 1972)).

         The 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).

         Similarly, 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.”).

         Here, 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.

         Although 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 force).[12]

         The 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)).

         Similarly, 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).[13]

         Finally, 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.

         Moreover, 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.'”).

         Because 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 clause.[14]

         2. Section 200.380 is not divisible

         A 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.[15] Because the statute is both overbroad and indivisible, the court may not proceed to the modified categorical approach and the inquiry ends.

         The 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. at 2257.

         This 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 resentence him.

         IV. Resentencing

         Having 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).

         Because 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 sentencing hearing.

         V. Conclusion

         IT IS 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.

         IT IS FURTHER ORDERED that Avery's amended sentence (ECF Nos. 174, 176), which re-imposed Avery's original sentence (ECF Nos. 146, 149), is VACATED.

         IT IS FURTHER ORDERED that Avery is resentenced to ten years' imprisonment.

         IT IS FURTHER ORDERED that the terms of supervised release imposed in this court's amended judgment (ECF No. 176) are re-imposed.

         IT IS FURTHER ORDERED that the Federal Bureau of Prisons shall release Avery on January 18, 2017, unless the court has ordered otherwise.

         IT IS 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.

         IT IS 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.

         IT IS SO ORDERED.

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Notes:

[1]This citation refers to the court's docket number.

[2] 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).

[3] 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 sentence enhancement.

[4] 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 brief.

[5] 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. 2015)).

[6] Several of the cases cited in this order refer to Johnson 2010 as Johnson I and to Johnson 2015 as Johnson II.

[7] 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 argument.

[8] 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 decisions).

[9] Burglary is an enumerated offense under the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii).

[10] 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 convictions.

[11] 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.

[12] 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 property.

[13] 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).

[14] 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.

[15] The United States has not argued that NRS § 200.380 is divisible in regards to the degree of force the defendant uses.

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