United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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).
December 27, 2004, a different court within this district
(“sentencing court”)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.
Johnson v. United States and subsequent
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”). 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.
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).
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.
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).
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).
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).
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.
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].'” 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)).
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).
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).
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.
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).
Givens is a career offender under U.S.S.G. §
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.
Sentencing Guidelines Manual § 4B1.1(a) (U.S. Sentencing
Comm'n 2001) (emphasis added). At the time of Givens'
sentencing, the Guidelines defined a “crime of
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.
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).
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.
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.
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). His secondary argument therefore hinges on
whether even one of his remaining Nevada convictions
qualifies as a crime of violence absent the residual clause.
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.See ECF No. 1858. In
turn, the ...