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United States v. Wilson

United States District Court, D. Nevada

May 2, 2018

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
GREGORY WILSON, Petitioner/Defendant.

          ORDER

          Kent J. Dawson United States District Judge

         Presently before the Court is Petitioner's Motion to Reconsider Order Denying Petitioner's Motion to Vacate under 28 U.S.C. § 2255 (#148). The Government filed a response (#152) to which Petitioner replied (#153). I. Background On December 17, 2009, a jury found Gregory Wilson (“Petitioner”) guilty of one count of felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). On April 30, 2010, the Court sentenced Petitioner to 240 months' imprisonment. Petitioner was categorized as an armed career criminal based on his prior convictions under California Penal Code § 211 (“California robbery”). This categorization led to an Armed Career Criminal Act (“ACCA”) enhancement, resulting in a total offense level of 33. Without the ACCA enhancement, Petitioner's total offense level would have been 26.

         On May 14, 2010, Petitioner filed a notice of appeal. On March 22, 2011, the Ninth Circuit Court of Appeals affirmed the decision of the District Court. On September 30, 2013, Petitioner filed a 2255 Motion alleging prosecutorial misconduct, ineffective assistance of counsel, and due process violations. On March 1, 2014, the Court denied Petitioner's 2255 Motion as untimely.

         On June 26, 2015, the United States Supreme Court decided Johnson v. United States, finding the residual clause of the ACCA violates the Constitution's guarantee of due process. See Johnson v. U.S., 135 S.Ct. 2551, 2557 (2015). On April 18, 2016, the Supreme Court held Johnson announced a new, substantive rule that has retroactive effect on cases on collateral review. See Welch v. U.S., 136 S.Ct. 1257, 1268 (2016). On June 7, 2016, Petitioner filed the present motion based on the new, retroactively applicable Constitutional rule announced in Johnson.

         On August 29, 2017, the Ninth Circuit decided United States v. Geozos, which provides a framework for how to address ACCA enhancements imposed before Johnson and Welch were decided. See U.S. v. Geozos, 870 F.3d 890 (9th Cir. 2017). Geozos puts forth three paths of analysis depending on the combined clarity of the sentencing court record and then-binding case law: (1) if it is clear from the record and then-binding case law that the ACCA enhancement was based on the residual clause, the enhancement is unconstitutional and the Petitioner must be resentenced; (2) if it is clear from the record and then-binding case law that the ACCA enhancement was based on either the enumerated offense clause or the physical force clause, the sentencing has a basis in law and it must stand; or (3) if it is unclear which prong of the ACCA the enhancement was based on, the court looks to current case law to decide whether the underlying felony qualifies as a violent felony under the ACCA today. See Geozos 870 F.3d at 895.

         Here, the Government argues Petitioner's case fits option two: that case law at the time of Petitioner's sentencing shows the ACCA enhancement is clearly based on the physical force clause. It argues the Ninth Circuit decision United States v. David H., decided in 1994, held California robbery “includes the element of threatened use of physical force against the person of another, ” and that as a result, the sentencing court's decision had a basis in law, and must be upheld.

         However, Petitioner argues his case falls within option three: that the sentencing court record is silent as to which clause was relied upon for Petitioner's ACCA enhancement, and that at the time of sentencing, it was unclear under the case law whether California robbery would have qualified under the physical force clause or the now unconstitutional residual clause. As such, Petitioner argues this Court should look to the present day Ninth Circuit decision United States v. Dixon, which holds that in light of Johnson's invalidation of the residual clause, California robbery is not a violent felony under the ACCA. See U.S. v. Dixon, 805 F.3d 1193 (9th Cir. 2015).

         II. Legal Standard

         In relevant part, Federal Rule of Civil Procedure 60(b) states “the court may relieve a party or its legal representative from a final judgment, order, or proceeding for . . . mistake, inadvertence, surprise, [] excusable neglect . . . or any other reason that justifies relief.” This Court reconsiders Petitioner's 2255 Motion due to the Court's prior, inapplicable analysis of Petitioner's enhancement under the sentencing guidelines “crime of violence” definition. The appropriate analysis is under the ACCA's distinct definition of “violent felony.” While the parties disagree on what is to be the correct outcome, both parties, along with the Court, consent to and agree that in light of this distinction, reconsideration is necessary and appropriate.

         III. Analysis

         Geozos dictates a two-prong analysis for addressing challenges to sentences imposed pre-Johnson. First, the Court must analyze whether Petitioner's claim “relies on” Johnson by determining via then-binding case law and the sentencing record which prong of the ACCA the court relied upon when sentencing Petitioner. Second, if the Court finds Petitioner's claim does rely on Johnson, meaning the enhancement was based on the unconstitutional residual clause, or it is unclear which prong the sentencing court relied on, the Court must determine whether that Johnson error at Petitioner's sentencing was “harmless.”

         A. Whether Petitioner's Claim “Relies On” Johnson

         Petitioner alleges the sentencing court relied on the residual clause when finding he possessed the requisite violent felony convictions to qualify for an ACCA enhancement, and that as such, his claim relies on Johnson. The Court turns to the sentencing court record and then-binding case law to make this determination.

         The sentencing court record is silent as to what portion of the ACCA it relied on when making this determination. The court simply stated, “[T]he [Petitioner] has a lengthy criminal history that includes violent felonies, he's subject to the Armed Career Criminal provisions which puts him at ¶ 15-year minimum.” Sentencing Transcript (#96, at 12). “[W]hen it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the ...


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