United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court is Petitioner Brandon White's
(“Petitioner's”) Motion to Vacate, Set Aside,
or Correct Sentence Pursuant to 28 U.S.C. § 2255
(“2255 Motion”), (ECF No. 120). The Government
filed a Response, (ECF No. 122), and Petitioner filed a
Reply, (ECF No. 123). For the reasons stated below, the Court
DENIES Petitioner's 2255 Motion.
April 11, 2016, Petitioner pleaded guilty to Counts 1 and 2
of the Superseding Indictment: (1) Carjacking, in violation
of 18 U.S.C. § 2119; and (2) Use of a Firearm During and
in Relation to a Crime of Violence, in violation of 18 U.S.C.
§ 924(c). (Mins. Proceedings, ECF No. 105); (see
also Plea Agreement, ECF No. 106). The Court sentenced
Petitioner to 63 months custody for Count 1, and 84 months
custody for Count 2, to run consecutive to one another, for a
total of 147 months. (J., ECF No. 119). Petitioner thereafter
filed his 2255 Motion, seeking to vacate his sentence on the
ground that his conviction for Count 2 implicates an
unconstitutionally vague statutory provision. (See
generally 2255 Motion, ECF No. 120).
28 U.S.C. § 2255, a petitioner may file a motion
requesting the Court which imposed sentence to vacate, set
aside, or correct the sentence. 28 U.S.C. § 2255(a).
Such a motion may be brought on the following grounds:
“(1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was
without jurisdiction to impose the sentence; (3) the sentence
was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack.”
Id.; see United States v. Berry, 624 F.3d
1031, 1038 (9th Cir. 2010). When a petitioner seeks relief
pursuant to a right newly recognized by a decision of the
United States Supreme Court, a one-year statute of
limitations applies. 28 U.S.C. § 2255(f)(3). That
one-year limitation begins to run from “the date on
which the right asserted was initially recognized by the
Supreme Court.” Id. § 2255(f)(3).
raises two grounds for relief in his instant 2255 Motion.
First, Petitioner argues that his sentence for Count 2 arose
under an unconstitutionally vague provision of 18 U.S.C.
§ 924(c). (2255 Motion at 6-8, ECF No. 120); (2255
Motion at 5-28, ECF No. 120-1). Second, Petitioner argues
that his prior counsel was ineffective for failing to raise a
vagueness argument concerning § 924(c) before sentencing
or on direct appeal. (2255 Motion at 6-8, ECF No. 120); (Mem.
in Support of 2255 Motion at 5-28, ECF No. 120-1).
18 U.S.C. § 924(c) criminalizes the use or carrying of a
firearm in relation to a “crime of violence, ”
and it imposes mandatory minimum sentences that must run
consecutive to any other sentence. An offense may qualify as
a crime of violence under § 924(c) through either of two
clauses: § 924(c)(3)(A) or § 924(c)(3)(B). Section
924(c)(3)(A), also known as the statute's “force
clause, ” applies if an individual is convicted of a
predicate crime that “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another.” By contrast, §
924(c)(3)(B), known as the “residual clause” of
the statute, is much broader; it applies if the individual is
convicted of any predicate felony offense “that by its
nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.” The U.S. Supreme
Court recently invalidated § 924(c)(3)(B) after holding
that its language is unconstitutionally vague. See United
States v. Davis, No. 18-431, 2019 WL 2570623, at *13
(U.S. June 24, 2019). However, the force clause, §
924(c)(3)(A), has not been deemed unconstitutional.
argues that his sentence based on Count 2 of the Indictment
violates due process because the Court imposed it under the
unconstitutionally vague residual clause, 18 U.S.C. §
924(c)(3)(B). (Mem. in Support of 2255 Motion at 2-28, ECF
No. 120-1). To make that argument, Petitioner points to his
predicate offense of Carjacking in violation of 28 U.S.C.
§ 2119. (Id. at 8-9). He claims that Carjacking
is not a crime of violence by its elements, and thus his
sentence enhancement for that predicate crime under 924(c)
must have arisen from the unconstitutional residual clause.
(Id. at 23).
Ninth Circuit in United States v. Gutierrez, 876
F.3d 1254, 1257 (9th Cir. 2017), cert. denied, 138 S.Ct.
1602, 200 L.Ed.2d 785 (2018), rejected the same arguments
made by Petitioner when it held that Carjacking constitutes a
crime of violence by its elements because it
“necessarily entails the threatened use of violent
physical force.” 876 F.3d at 1257. In other words,
Petitioner's conviction for Carjacking implicates the
force clause, 18 U.S.C. § 924(c)(3)(A), not the
unconstitutional residual clause. He accordingly is not
entitled to relief from his sentence for Count 2 of the
Superseding Indictment due to an unconstitutionally vague
statutory provision. Additionally, because Petitioner's
sentence did not arise from an unconstitutionally vague
statutory provision, his prior counsel was not ineffective
for failing to raise a vagueness argument before
Petitioner's sentencing or on direct appeal. See Hill
v. Lockhart, 474 U.S. 52, 60 (1985) (requiring a
petitioner to show that he was “prejudiced” by
his prior counsel's performance before a court can
declare counsel's representation to be ineffective).
proceed with an appeal of this Order, Petitioner must receive
a certificate of appealability from the Court. 28 U.S.C.
§ 2253(c)(1); Fed. R. App. P. 22; 9th Cir. R. 22-1;
Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir.
2006); see also United States v. Mikels, 236 F.3d
550, 551-52 (9th Cir. 2001). This means that Petitioner must
make “a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2);
Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). He
bears the burden of demonstrating that the issues are
debatable among jurists of reason; that a court could resolve
the issues differently; or that the questions are adequate to
deserve encouragement to proceed further. Slack, 529
U.S. at 483-84.
Court has considered the issues raised by Petitioner, with
respect to whether it satisfies the standard for issuance of
a certificate of appealability, and determines that the
issues do not meet that standard. The Court will therefore
deny Petitioner a certificate of appealability.