United States District Court, D. Nevada
ORDER DENYING MOTIONS TO RECONSIDER AND TO STRIKE AND
SETTING DETENTION HEARING (ECFNOS. 84, 88)
P. GORDON UNITED-STATES DISTRICT JUDGE
granted defendant William Ebron's motion to vacate his
conviction for brandishing a firearm during a "crime of
violence" under 18 U.S.C. § 924(c). Because this
was Ebron's only conviction in this case, I ordered the
government to show cause why Ebron should not be released
Reconsideration of my prior order
response to my order, the government asked me to reconsider
my decision. ECF No. 82. Ebron moved to strike that response
because the government had already filed an appeal, divesting
me of jurisdiction to entertain reconsideration. ECF No. 84.
The government concedes that its appeal may have been
premature, but suggests a "pragmatic" solution
would be for me to indicate my willingness to consider its
request for reconsideration (so the government knows whether
to move to dismiss its appeal). ECF No. 86.
government's motion for reconsideration raises two
arguments: (1) that Ebron procedurally defaulted the argument
he made in support of his original motion, and (2) that
because he admitted to committing the lesser included offense
of Hobbs Act Conspiracy, I should sentence him for that. I
deny the government's motion. See Fed. R. Civ.
P. 62.1(a)(2). See also, Fed. R. Crim. P. 37(a)(2).
procedural default argument fails for a few reasons. First,
procedural default is an affirmative defense that the
government can waive. Trest v. Cain, 522 U.S. 87, 89
(1997). The government admits that it did not raise this
defense until after I granted Ebron's motion to vacate.
Second, even if the government had timely raised this
argument, I would join the courts holding that procedural
default is excused in cases like this. See Alvarado v.
U.S., 2016 WL 6302517, *3 (CD. Cal. Oct. 14, 2016)
("[I]n the wake of Johnson, courts in the Ninth
Circuit have held that a section 2255 motion based on a
Johnson claim is not procedurally defaulted because
the claim was not 'reasonably available' prior to
Johnson:') (citation omitted); U.S. v.
Chilton, 2016 WL 6518665, *3 (N.D. Cal. Oct. 11, 2016)
(same); U.S. v. Santos, 2016 WL 5661553, *3 (CD.
Cal. Sept. 9, 2016) (petitioner satisfied "cause*'
prong of the test for avoiding procedural default of
Johnson-based challenge to his sentence under the
Career Offender Guideline residual clause); U.S. v.
McGary, 2016 WL 4126451, *2 (N.D. Cal. Aug. 3, 2016)
the government's argument that Ebron should be sentenced
for conspiracy to commit Hobbs Act robbery merely because he
admitted to the underlying facts in his plea agreement, the
government offers scant authority to support its position. It
cites a single case where the Supreme Court addressed this
issue in dicta only. There, the Court stated that it need not
"consider the precise limits on the appellate
courts' power to substitute a conviction on a lesser
offense for an erroneous conviction of a greater
offense." Rutledge v. United States, 517 U.S.
292, 306 (1996). In Rutledge, as in the cases cited
by the Supreme Court on this point, the defendant was
convicted of both the greater offense and the lesser included
offense. Id. (and cases cited there). Here, Ebron
was not convicted of Hobbs Act Conspiracy, so it is not
appropriate to sentence him on that charge.
these reasons, I deny the government's motion to
Ebron's release pending appeal
government requests that Ebron remain in custody pending its
appeal of my order. Pursuant to 18 U.S.C. § 3143(c), I
am to treat the defendant in accordance with 18 U.S.C. §
3142. Thus, I will hold a hearing on whether to release or
detain Ebron on Monday, September 18, 2017 at 2:00 p.m. in
Las Vegas courtroom 6C. The Pretrial Services Office will
contact Ebron's counsel to arrange an interview with
Ebron before that hearing. The parties may file briefs on
whether Ebron should be detained by 12:00 noon on Friday,
September 15, 2017.
THEREFORE ORDERED that the defendant's motion to strike
(ECF No. 84) is DENIED as moot.
FURTHER ORDERED that the government's motion to
reconsider (ECF No. 88) is DENIED.
FURTHER ORDERED that a detention hearing will be conducted on
Monday, September 18, 2017 at 2:00 p.m. in
Las Vegas courtroom 6C. The parties may file briefs on
whether Ebron should ...