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United States v. Givens

United States District Court, D. Nevada

August 1, 2017




         Before the court is petitioner Antonio Givens' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 1836. The United States filed a response (ECF No. 1858), to which Givens replied (ECF No. 1861). With the court's leave, the parties filed supplemental briefing addressing the impact of Beckles v. United States, 137 S.Ct. 886 (2017) on Givens' claim for relief under Johnson v. United States, 135 S.Ct. 2551 (2015). ECF Nos. 1902, 1906-07.

         The court holds that, even if the void-for-vagueness doctrine applies to sentences rendered before the U.S. Sentencing Guidelines (“U.S.S.G.”) became discretionary, Givens still qualifies as a career offender under U.S.S.G. § 4B1.1 without reliance on that guideline's former “residual clause.” Specifically, the court finds that the guideline's commentary is authoritative and that the court may therefore compare Givens' two Nevada attempted robbery convictions to both generic robbery and extortion. Because these offenses are a categorical match under Ninth Circuit precedent, Givens is not entitled to relief from the sentencing court's application of the career-offender guideline.

         Similarly, the court finds that Hobbs Act robbery is categorically a crime of violence under the “force clause” of 18 U.S.C. § 924(c). In turn, even if section 924(c)'s residual clause is void for vagueness, Givens is not entitled to relief from his section 924(c) conviction. His motion will therefore be denied as to both claims for relief, but the court will issue a certificate of appealability.

         I. Background

         A. Givens' conviction

         On May 13, 2004, Givens pled guilty to one count of conspiracy to engage in Racketeering Influenced Corrupt Organization (“RICO”) under 18 U.S.C. § 1962(d) and one count of the use of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). ECF No. 333. The United States also charged Givens with one count of interference with commerce by robbery under 18 U.S.C § 1951 (“Hobbs Act robbery”) (ECF No. 253 at 44- 45), but pursuant to the parties' plea agreement, the United States moved to dismiss this count (ECF No. 334 at 2).

         On December 27, 2004, a different court within this district (“sentencing court”)[1]sentenced Givens to 165 months of imprisonment on the RICO count, as well as a consecutive 7 years on the section 924(c) count. ECF Nos. 532, 552 at 2.

         B. Johnson v. United States and subsequent challenges

         Givens filed his section 2255 motion in the wake of Johnson v. United States, 135 S.Ct. 2551 (2015). There, the U.S. Supreme Court ruled that a portion of the Armed Career Criminal Act's (“ACCA”) violent-felony definition, often referred to as the residual clause, was unconstitutionally vague (i.e., “void for vagueness”).[2] Johnson, 135 S.Ct. at 2557. The Supreme Court subsequently held that Johnson announced a new substantive rule that applied retroactively to cases on collateral review, Welch v. United States, 136 S.Ct. 1257 (2016), thus allowing defendants to challenge their ACCA convictions under section 2255.

         Moreover, Johnson also sparked challenges to other federal criminal statutes and sections of the Sentencing Guidelines that incorporate a crime-of-violence definition that includes a residual clause similar or identical to the ACCA's. For instance, as in this case, petitioners have challenged the application of the career-offender enhancement under U.S.S.G. § 4B1.1, which, until recently, included a residual clause identical to the ACCA's. The Supreme Court, however, recently ruled in Beckles v. United States that “the advisory Sentencing Guidelines, including [U.S.S.G.] § 4B1.2(a)'s residual clause, are not subject to a challenge under the void-for-vagueness doctrine.” 137 S.Ct. at 896 (emphasis added).

         Similarly, petitioners convicted of the use of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c) have also challenged their convictions under Johnson. Although a challenge to this specific statute has yet to reach the Supreme Court, it granted certiorari this past term in Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S.Ct. 31 (2016). There, the Ninth Circuit addressed a challenge to the residual clause found in 18 U.S.C. § 16(b), which contains a residual clause identical to the one contained within section 924(c) but not identical to the ACCA residual clause at issue in Johnson. Dimaya, 803 F.3d at 1111-12. The Ninth Circuit ultimately held that section 16(b)'s clause was also void for vagueness. Id. at 1119. Although the Supreme Court heard oral arguments in Dimaya earlier this year, it set the case for re-argument for its next term. Sessions v. Dimaya, 137 S.Ct. 31.

         And while a challenge directly to section 924(c) is currently before the Ninth Circuit, the court has deferred ruling on the issue until the Supreme Court decides Dimaya. United States v. Begay, No. 14-10080, ECF No. 87 (9th Cir. 2017); see also United States v. Begay, 2016 WL 1383556 (9th Cir. 2016).

         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). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” Id. § 2255(b).

         Section 2255 creates a one-year statute of limitations. 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

         Givens' section 2255 motion challenges both the application of the career-offender guideline to his sentence and his conviction under 18 U.S.C. § 924(c). Although both challenges stem from Johnson v. United States, they raise unique issues that the court will address separately.

         As an initial matter, the court notes that the categorical approach applies throughout this analysis. Traditionally, the categorical approach is an analytical framework that sentencing courts must apply in determining whether a defendant's prior state or federal offenses mandate a sentence enhancement by satisfying the violent-felony definition under the ACCA. See Taylor v. United States, 495 U.S. 575 (1990). The analysis also applies to calculating a convicted defendant's sentencing range when his conduct invokes a guideline that implicates a crime-of-violence definition. See, e.g., United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008). Additionally, “the Ninth Circuit has consistently held that the categorical analyses apply to § 924(c) crime-of-violence determinations both at trial and at sentencing ‘without regard to whether the given offense is a prior offense or the offense of conviction [i.e., a concurrently- charged offense].'”[3] United States v. Smith, 215 F.Supp.3d 1026, 1032 (D. Nev. 2016) (quoting United States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006)).

         Under the categorical approach, a court may only “compare the elements of the statute forming the basis of the defendant's [prior] conviction [or concurrently-charged offense] with the elements of” a violent felony or crime of violence. Descamps v. United States, 133 S.Ct. 2276, 2281 (2013) (emphasis added); see also United States v. Benally, 843 F.3d 350, 352 (9th Cir. 2016). Therefore, a court may not examine “[h]ow a given defendant actually perpetrated the crime-what [the Supreme Court has] referred to as the ‘underlying brute facts or means' of commission . . . .” Mathis v. United States, 136 S.Ct. 2243, 2251 (2016) (citation omitted). “The defendant's crime cannot categorically be a ‘crime of violence' if the statute . . . punishes any conduct not encompassed by the statutory definition of a ‘crime of violence.'” Benally, 843 F.3d at 352. Such statutes are often referred to as “overbroad.” See, e.g., United States v. Castillo- Marin, 684 F.3d 914, 919 (9th Cir. 2012).

         If the statute is overbroad, a court may then determine whether the prior or concurrently-charged offense that the statute defines “can be divided into violations that constitute” a crime of violence and “others that do not.” United States v. Dixon, 805 F.3d 1193, 1196 (9th Cir. 2015). Such statutes are referred to as “divisible, ” meaning that they “list elements in the alternative, and thereby define multiple crimes.” Mathis, 136 S.Ct. at 2249. However, a statute that is worded disjunctively is not necessarily divisible. Id.; see also Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014). “If the statute is indivisible, [the] inquiry ends, because a conviction under an indivisible, overbroad statute can never” categorically be a crime of violence. Lopez-Valencia v. Lynch, 798 F.3d 863, 867 (9th Cir. 2015).

         “Only when a statute is overbroad and divisible” may courts apply the “modified categorical approach. At this step, [courts] may examine certain documents . . . to determine what elements of the divisible statute [the defendant] was convicted of violating.” Id.

         Importantly, for a court to find that a statute is overbroad “requires more than the application of legal imagination to a . . . statute's language.” Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). This finding “requires a realistic probability, not a theoretical possibility, ” that a statute would apply to conduct not encompassed by the crime-of-violence definition. Id. “To show that realistic probability, an offender . . . may show that statute was so applied in his own case. But he must at least point to his own case or other cases in which . . . courts in fact did apply the [offense] in the special . . . manner for which he argues.” Id. However, if a statute “explicitly defines” the concurrently-charged offense more broadly than the crime-of-violence definition, then “no ‘legal imagination' is required to hold that a realistic probability exists that” the offense is overbroad. Chavez-Solis v. Lynch, 803 F.3d 1004, 1009 (9th Cir. 2015).

         A. Givens is a career offender under U.S.S.G. § 4B1.1

         The career-offender guideline's sentencing enhancement applies if the following criteria are met:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

         U.S. Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing Comm'n 2001) (emphasis added)[4]. At the time of Givens' sentencing, the Guidelines defined a “crime of violence”

as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . (1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a) (emphasis added). The first clause in this definition is often referred to as the “force” or “elements” clause, while the latter clause is the “enumerated-offense” clause. The final italicized portion is the aforementioned residual clause, which is identical to the one found in the ACCA. Because the definition is worded disjunctively, a felony need only categorically match one of these clauses in order to constitute a crime of violence.

         Here, the sentencing court found that Givens qualified as a career offender based on his then-instant RICO conviction and five of his prior Nevada state-law convictions: discharging a firearm under NRS 20.481; battery with the use of a deadly weapon under NRS 200.481; sale of a controlled substance under NRS 453.321; and two convictions for attempted robbery under NRS 200.380. ECF No. 1836 at 2 (citing PSR at ¶¶ 141, 148, 151-52, 158).

         Givens now moves for relief from the sentencing court's application of the career-offender guideline under U.S.S.G. § 4B1.1, arguing that it is impermissible in light of Johnson. Taking into consideration both his original motion and post-Beckles supplemental briefing, this argument proceeds in two parts.

         First, Givens contends that Beckles does not foreclose his claim for relief because he was sentenced before the sentencing guidelines were rendered discretionary in United States v. Booker, 543 U.S. 220 (2005). ECF No. 1902; see also supra § II.B. He argues that the Supreme Court's holding and rationale in Beckles applied only to the post-Booker Guidelines and not to the pre-Booker era in which the Guidelines were binding on federal courts. Givens therefore contends that the pre-Booker, mandatory Guidelines are subject to void-for-vagueness challenges and that, under Johnson, the application of the career-offender guideline's residual clause during that period was unconstitutional. The United States opposes this position. ECF No. 1906.

         Second, Givens argues that he does not satisfy the career-offender guideline once excised of its residual clause. ECF No. 1836. Specifically, he contends that he does not meet the definition's third element: “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a)(3) (emphasis added). Givens does not challenge whether his Nevada controlled-substance conviction under NRS 453.321 comports with the career-offender guideline's controlled-substance definition under section 4B1.2(b).[5] His secondary argument therefore hinges on whether even one of his remaining Nevada convictions qualifies as a crime of violence absent the residual clause.

         The United States has not responded to Givens' arguments that the discharge-of-a-firearm and battery convictions are not categorically crimes of violence and therefore appears to have conceded these issues.[6]See ECF No. 1858. In turn, the ...

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