Lott v. USA, No. 3:2016cv01575 - Document 3 (S.D. Cal. 2017)
Court Description: ORDER Denying Petition to Vacate under 28 USC 2255: A certificate of appealability is granted. Signed by Judge William Q. Hayes on 2/9/2017. (mdc)
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Lott v. USA Doc. 3 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 UNITED STATES OF AMERICA, 10 v. CASE NO. 95cr0072 WQH CASE NO. 16cv1575 WQH Plaintiff/Respondent, ORDER 11 12 KEITH LAMAR LOTT (1) Defendant/Petitioner. 13 14 HAYES, Judge: This matter comes before the Court on the motion pursuant to 28 U.S.C. § 2255 15 16 17 18 filed by Defendant/Petitioner. (ECF No. 668). Defendant/Petitioner moves the Court to vacate his sentence based upon Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v. United States, 136 S. Ct. 1257 (2016). BACKGROUND FACTS 19 The charges against the Petitioner and his co-defendants resulted from two armed 20 21 22 23 24 25 26 27 28 jewelry store robberies in San Diego, California on July 11, 1992 and August 12, 1992. On April 12, 1996, a jury found Petitioner guilty of Count 1 and 3, interference with commerce by robbery (Hobbs Act robbery), in violation of 18 U.S.C. § 1951(a); Count 2, using and carrying of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1); and Count 4, aiding and abetting the using and carrying of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1) and 18 U.S.C. § 2. The Presentence Investigation Report calculated the guideline range for Counts -1- 95CR0072 WQH Dockets.Justia.com 1 1 and 3 at 110-137 months. The report stated that Petitioner was subject to mandatory 2 consecutive terms of five years on Count 2 and twenty years on Count 4. 3 On July 10, 1996, the Court entered a Judgment sentencing Petitioner to be 4 imprisoned for a total of 423 months as follows: a term of 123 months as to each of 5 Counts 1 and 3 concurrently and concurrently with state sentence YA015546, and 6 GA015598; sixty months as to Count 2 to run consecutively to Counts 1 and 3; and 240 7 months as to Count 4 to run consecutively to Counts 1-3. (ECF No. 413). 8 Petitioner filed a timely appeal of his conviction on a number of grounds and the 9 Court of Appeals affirmed Petitioner’s conviction. United States v. Lott, 137 F.3d 1094, 10 1104 (9th Cir. 1998). Petitioner filed a motion to vacate, set aside or correct his sentence under 28 11 12 U.S.C. § 2255 which was denied by the district court. (ECF No. 546). 13 After Johnson, Petitioner filed a motion in the Court of Appeals seeking 14 permission to file a second or successive petition under 28 U.S.C. § 2255. Petitioner 15 contends that he is entitled an order vacating his sentence based upon the decision of 16 the Supreme Court in Johnson striking down the residual clause § 924(e)(2)(B)(ii) of 17 the Armed Career Criminal Act as unconstitutional vague. 18 On October 7, 2016, the Court of Appeals granted the application to file a second 19 or successive 28 U.S.C. § 2255 motion and transferred Petitioner’s motion to vacate, 20 set aside or correct his sentence under 28 U.S.C. § 2255 to this district court. (ECF No. 21 678). 22 APPLICABLE LAW 23 28 U.S.C. § 2255 provides that “[a] prisoner in custody under sentence of a court 24 established by Act of Congress claiming the right to be released upon the ground that 25 the sentence was imposed in violation of the Constitution or laws of the United States, 26 or that the court was without jurisdiction to impose such sentence, or that the sentence 27 was in excess of the maximum authorized by law, or is otherwise subject to collateral 28 attack, may move the court which imposed the sentence to vacate, set aside or correct -2- 95CR0072 WQH 1 the sentence.” 28 U.S.C. § 2255. A petitioner seeking relief under § 2255 must file a 2 motion within the one year statute of limitations set forth in § 2255(f). Section 3 2255(f)(3) provides that a motion is timely if it is filed within one year of “the date on 4 which the right asserted was initially recognized by the Supreme Court, if that right has 5 been newly recognized by the Supreme Court and made retroactively applicable to cases 6 on collateral review.” 28 U.S.C. § 2255(f)(3). CONTENTIONS OF THE PARTIES 7 8 Petitioner contends that his sentence on Count 2 and Count 4 for violation of 18 9 U.S.C. § 924(c) must be vacated because Hobbs Act robbery is not, as a matter of law, 10 a predicate crime of violence after Johnson. Petitioner contends that the holding in 11 Johnson which invalidated the residual clause in the term “violent felony” of the Armed 12 Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), applies equally to the 13 residual clause in the term “crime of violence” in 18 U.S.C. § 924(c)(3)(B). Petitioner 14 further asserts that Hobbs Act robbery is not a crime of violence under the force clause 15 of § 924(c)(3)(A) because Hobbs Act robbery does not necessarily require the use or 16 threatened use of violent physical force, or the intentional use or threatened use of 17 physical force. 18 Respondent contends that a limited stay is appropriate because the precise 19 question raised in this case will likely be answered by the Ninth Circuit in United States 20 v. Begay, C.A. No. 14-10080.1 Respondent asserts that Petitioner has procedurally 21 defaulted his claim by failing to raise it on direct appeal.2 Respondent further asserts 22 that Johnson does not invalidate the residual clause of § 924(c)(3)(B), and that Hobbs 23 Act robbery remains a crime of violence under the residual clause of §924(c)(3)(B) and 24 1 In Begay, No. 14-10080, the Court of Appeals may determine whether Johnson invalidates the residual clause of §924(c)(3)(B). However, “habeas proceedings implicate special considerations that place unique limits on a district court’s authority to stay a case in 26 the interests of judicial economy.” Young v. I.N.S., 208 F.3d 1116, 1120 (9th Cir. 2000). Because habeas relief is intended to be “a swift and imperative remedy in all cases of illegal 27 restraint or confinement,” this Court denies the request to stay. Id. (citation omitted). 25 28 2 The Court addresses the motion on the merits and does not address the argument that the Petitioner procedurally defaulted on his claim. -3- 95CR0072 WQH 1 the elements/force clause of §924(c)(3)(A). RULING OF THE COURT 2 3 Petitioner was convicted by a jury of two counts of Hobbs Act robbery in 4 violation of 18 U.S.C. § 1951(a), and two counts of aiding and abetting use and carrying 5 of a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1) and 6 (2). 18 U.S.C. § 924(c) provides certain penalties for a person “who, during and in 7 relation to any crime of violence..., uses or carries a firearm, or who, in furtherance of 8 any such crime, possesses a firearm.” 18 U.S.C. § 924(c)(1)(A). Under § 924(c)(3), 9 ... the term “crime of violence” means an offense that is a felony and— (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 18 U.S.C. § 924(c)(3). Courts generally refer to the “(A)” clause of Section 924(c)(3) as the “force clause” and to the “(B)” clause of Section 924(c)(3) as the “residual clause.” Under the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990), the Court must “determine whether the statute of conviction is categorically a ‘crime of violence’ by comparing the elements of the statute of conviction with the generic federal definition.” United States v. Sahagun-Gallegos, 782 F.3d 1094, 1098 (9th Cir. 2015). In this case, the Court compares the elements of Hobbs Act robbery, 18 U.S.C. § 1951(a) with the definition of “crime of violence” in §924(c)(3) to determine whether Hobbs Act robbery criminalizes more or less conduct.3 Residual clause § 924(c)(1)(B) In United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993), the Court of Appeals stated, We do not address whether conspiracy to rob in violation of § 1951 is a 26 27 3 The Hobbs Act defines “robbery” as “the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or 28 threatened force, or violence, or fear of injury, immediate or future, to his person or property.” 18 U.S.C. § 1951(b)(1). -4- 95CR0072 WQH 4 “crime of violence” under subsection (A) of § 924(c)(3) because we conclude that it is a “crime of violence” under subsection (B). Robbery indisputably qualifies as a crime of violence. See 18 U.S.C. § 1951(b)(1) (containing element of “actual or threatened force, or violence”). We determine today that conspiracy to rob in violation of § 1951 “by its nature, involves a substantial risk that physical force ... may be used in the course of committing the offense.” § 924(c)(3)(B). 5 In Johnson, the United States Supreme Court held that the residual clause of the 6 Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii) defining “violent 7 felony” is unconstitutionally vague because the application of the residual clause 8 “denies fair notice to defendants and invites arbitrary enforcement by judges.” 135 S. 9 Ct. at 2557-58. The relevant language of the definition of “violent felony” found 10 unconstitutionally vague in the residual clause of § 924(e)(2)(B)(ii) provides: “any 11 crime . . . that . . . otherwise involves conduct that presents a serious potential risk of 12 physical injury to another.”4 The Supreme Court concluded that the residual clause 13 language in § 924(e)(2)(B)(ii) “leaves grave uncertainty about how to estimate the risk 14 posed by a crime” because “[i]t ties the judicial assessment of risk to a judicially 15 imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements.” Id. 16 at 2557. The Supreme Court concluded that the residual clause language “leaves 17 uncertainty about how much risk it takes for a crime to qualify as a violent felony” by 18 forcing the “courts to interpret ‘serious potential risk’ in light of the four enumerated 19 crimes – burglary, arson, extortion, and crimes involving the use of explosives [which] 20 are ‘far from clear in respect to the degree of risk each poses.’” Id. at 2558 (quoting 21 Begay v. United States, 553 U.S. 137, 143 (2008)). The Supreme Court concluded that 22 “[i]ncreasing a defendant’s sentence under the [residual] clause [§ 924(e)(2)(B)(ii)] 1 2 3 23 24 25 26 4 Other provisions of § 924(e)(2)(B) defining “violent felony” not addressed in Johnson include the enumerated offenses in § 924(e)(2)(B)(ii) (“is burglary, arson, or extortion, [or] involves use of explosives”), and the remainder of the definition of violent felony in § 28 924(e)(2)(B)(i) (“has as an element the use, attempted use, or threatened use of physical force against the person of another”). 27 -5- 95CR0072 WQH 1 denies due process of law.” Id. at 2557.5 2 Several circuit courts have held that Johnson does not render the residual clause 3 language in § 924(c)(3)(B) unconstitutionally vague because several factors distinguish 4 the language of the residual clause in § 924(e)(2)(B)(ii). See United States v. Taylor, 5 814 F.3d 340, 376-79 (6th Cir. 2016); United States v. Hill, 832 F.3d 135, 144-50 (2d 6 Cir. 2016); United States v. Prickett, 839 F.3d 697, 699-700 (8th Cir. 2016). This Court 7 finds the reasoning of these decisions persuasive. See also Hernandez v. United States, 8 No. 10-CR-3173-H-3 (S.D. Cal. Nov. 8, 2016) (finding these circuit decisions 9 persuasive and concluding that Hobbs Act robbery qualifies as a crime of violence 10 under § 924(c)(3)(B)); Averhart v. United States, No. 11-CR-1861-DMS (S.D. Cal. 11 Nov. 21, 2016) (same). 12 Unlike the residual clause in § 924(e)(2)(B)(ii), the language in § 924(c)(3)(B) 13 is distinctly narrower and does not leave “grave uncertainty about how to estimate the 14 risk posed by a crime.” Johnson, 135 S. Ct. at 2557. Section 924(c)(3)(B) requires the 15 risk “that physical force against another person or property of another may be used in 16 the course of committing the offense.” This risk is more definite than the risk posed by 17 conduct “that presents a serious risk of physical injury to another” in § 924(e)(2)(B)(ii). 18 See Taylor, 814 F.3d at 376 (“[I]t deals with physical force rather than physical 19 injury.”); Hill, 832 F.3d at 148 (finding the “risk-of-force clause” narrower and easier 20 to construe than “serious potential risk of physical injury to another”); Prickett, 839 21 F.3d at 699 (relying upon Taylor and Hill to reach the same conclusion). “Unlike the 22 ACCA residual clause, § 924(c)(3)(B) does not allow courts to consider ‘physical injury 23 [that] is remote from the criminal act,’ a consideration that supported the Court’s 24 vagueness analysis in Johnson.” Taylor, 814 F.3d at 377 (quoting Johnson, 135 S. Ct. 25 26 5 The Court subsequently determined that Johnson stated a “new substantive rule that has retroactive effect in cases on collateral review.” Welch v. United States, 136 S. Ct. 1257, 27 1268 (2016). 28 -6- 95CR0072 WQH 1 at 2559). Because § 924(c)(3)(B) requires that “the risk of physical force arise ‘in the 2 course of’ committing the offense,” its application is limited to an offender who may 3 potentially use physical force in the commission of the offense. Taylor, 814 F.3d at 4 377. 5 Unlike the residual clause in § 924(e)(2)(B)(ii), the language in § 924(c)(3)(B) 6 does not complicate the level-of-risk by linking the “substantial risk” standard “to a 7 confusing list of examples” leaving “uncertainty about how much risk it takes for a 8 crime to qualify as a violent felony.” Johnson, 135 S. Ct. at 2561; see Taylor, 814 F.3d 9 at 377 (“§ 924(c)(3)(B) does not require analogizing the level of risk involved in a 10 defendant’s conduct to burglary, arson, extortion, or the use of explosives.”). In 11 addition, courts have not struggled to interpret § 924(c)(3)(B) as the courts have 12 struggled in interpreting § 924(e)(2)(B)(ii). See Taylor, 814 F.3d at 378 (“[T]he 13 Supreme Court has not unsuccessfully attempted on multiple occasions to articulate the 14 standard applicable to the § 924(c)(3)(B) analysis.”). 15 Based upon the material differences between the residual clause in § 16 924(e)(2)(B)(ii) and the residual clause language in § 924(c)(3)(B), this Court agrees 17 with the circuit decisions that the reasoning in Johnson does not apply to render § 18 924(c)(3)(B) unconstitutionally vague. See Johnson, 135 S. Ct. at 2563 (“Today’s 19 decision does not call into question application of the Act to . . . the remainder of the 20 Act’s definition.”). The residual clause language in § 924(c)(3)(B) provides “the 21 application of a “qualitative standard such as ‘substantial risk’ to real-world conduct” 22 recognized as constitutional by the Supreme Court. Id. at 2562. 23 Petitioner further asserts that the decision in Dimaya v. Lynch, 803 F.3d 1110 (9th 24 Cir. 2015), cert. granted, 137 S. Ct. 31 (2016) requires the Court to conclude that 25 Johnson invalidates the residual clause language in § 924(c)(3)(B). In Dimaya, the 26 Court of Appeals concluded that the definition of “crime of violence” set forth in 18 27 U.S.C. § 16(b) as incorporated into 8 U.S.C. § 1101(a)(43)(F) is unconstitutionally 28 -7- 95CR0072 WQH 1 vague. The Court of Appeals concluded that the language at issue, identical to § 2 924(c)(3)(B), “gives no more guidance than” the residual clause language in § 3 924(e)(2)(B)(ii) invalidated in Johnson. However, the Court of Appeals expressly 4 stated, “Our decision does not reach the constitutionality of 18 U.S.C. § 16(b) outside 5 of 8 U.S.C. § 1101(a)(43)(F) or cast doubt on the constitutionality of 18 U.S.C. §16(a)’s 6 definition of a crime of violence.” 803 F.3d at 1120 n.17. Therefore, Dimaya does not 7 control the issue of the constitutionality of § 924(c)(3)(B). See Hernandez, No. 10-CR- 8 3173-H-3 (S.D. Cal. Nov. 8, 2016)(“Dimaya does not control the present issue in this 9 case – the constitutionality of § 924(c)(3)(B).”) , and Averhart v. United States, No. 11- 10 CR-1861-DMS (S.D.Cal. Nov. 21, 2016) (“Dimaya does not compel the Court to hold 11 § 924(c)(3)(B) unconstitutional.”); see also Shuti v. Lynch, 828 F.3d 440, 450-51 (6th 12 Cir. 2016) (concluding that Johnson is applicable to the INA residual clause as in 13 Dimaya and distinguishing the application of Johnson to the ACCA residual clause as 14 in Taylor). 15 This Court concludes that Petitioner’s convictions in Counts 1 and 3 for 16 interference with commerce by robbery, in violation of 18 U.S.C. § 1951(a) remain a 17 crime of violence under § 924(c)(3)(B). See Mendez, 992 F.2d at 1491. 18 Force clause § 924(c)(1)(A) 19 The Court compares the elements of Hobbs Act robbery, 18 U.S.C. § 1951(a) 20 with this definition of “crime of violence” in §924(c)(3)(A) to determine whether Hobbs 21 Act robbery criminalizes more or less conduct. Hobbs Act robbery is a crime of 22 violence under § 924(c)(3) if the offense “has as an element the use, attempted use, or 23 threatened use of physical force against the person or property of another.” 18 U.S.C. 24 § 924(c)(3)(A). 25 In Mendez, the Court of Appeals stated, “Robbery indisputably qualifies as a 26 crime of violence. See 18 U.S.C. § 1951(b)(1) (containing element of “actual or 27 28 -8- 95CR0072 WQH 1 threatened force, or violence”).” 922 F.2d at 1491. The Court of Appeals limited its 2 holding that Hobbs Act robbery was crime of violence under the ACCA in Mendez to 3 the residual clause in §924(c)(3)(B). On June 24, 2016, the Court of Appeals explicitly 4 rejected the argument that Hobbs Act robbery “does not necessarily involve ‘the use, 5 attempted use, or threatened use of physical force.’” United States v. Howard, 650 Fed. 6 App’x. 466, 468 (9th Cir. 2016) (citing 18 U.S.C. § 924(c)(3)(A)). The Court of 7 Appeals explained: 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Focusing on the Hobbs Act’s “actual or threatened force, or violence” language, we have previously stated that Hobbs Act “[r]obbery indisputably qualifies as a crime of violence” under § 924(c). United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir.1993). Howard, however, argues that because Hobbs Act robbery may also be accomplished by putting someone in “fear of injury,” 18 U.S.C. § 1951(b), it does not necessarily involve “the use, attempted use, or threatened use of physical force,” 18 U.S.C. § 924(c)(3)(A). Howard’s arguments are unpersuasive and are foreclosed by United States v. Selfa, 918 F.2d 749 (9th Cir.1990). In Selfa, we held that the analogous federal bank robbery statute, which may be violated by “force and violence, or by intimidation,” 18 U.S.C. § 2113(a) (emphasis added), qualifies as a crime of violence under U.S.S.G. § 4B1.2,2 which uses the nearly identical definition of “crime of violence” as § 924(c). Selfa, 918 F.2d at 751. We explained that “intimidation” means willfully “to take, or attempt to take, in such a way that would put an ordinary, reasonable person in fear of bodily harm,” which satisfies the requirement of a “threatened use of physical force” under § 4B1.2. Id. (emphasis added) (quoting United States v. Hopkins, 703 F.2d 1102, 1103 (9th Cir.1983)). Because bank robbery by “intimidation”—which is defined as instilling fear of injury—qualifies as a crime of violence, Hobbs Act robbery by means of “fear of injury” also qualifies as crime of violence. Id. The Court of Appeals stated: “Because we conclude that Hobbs Act robbery qualifies as a crime of violence under § 924(c)’s force clause, we need not consider Howard’s arguments regarding § 924(c)’s alternative ‘residual clause’ definition of ‘crime of violence.’” Id. at 468 n.3. The panel clearly stated the conclusion that Hobbs Act robbery qualifies as a crime of violence under § 924(c)’s force clause. The Court of Appeals in Howard further stated: “Howard does not argue that Hobbs Act robbery may be accomplished through de minimis use of force, and we take no position on that issue or the applicability of these precedents to Hobbs Act robbery.” 27 28 -9- 95CR0072 WQH 1 Id. at 468 n.1. In this case, Petitioner asserts that the issue of de minimis force is 2 precisely one of the bases for his argument that § 1951 is overbroad. This Court is not 3 persuaded by the argument that Hobbs Act robbery does not qualify as a crime of 4 violence under §924(c)’s force clause because it may be accomplished by de minimis 5 force. The Hobbs Act defines “robbery” as “the unlawful taking or obtaining of 6 personal property from the person or in the presence of another, against his will, by 7 means of actual or threatened force, or violence, or fear of injury, immediate or future, 8 to his person or property.” 18 U.S.C. § 1951(b)(1) (emphasis added). 9 requires proof of the intentional use or threatened use of physical force, “that is, force 10 capable of causing physical pain or injury to another.” Johnson v. United States, 559 11 U.S. 133, 140 (2010). In the alternative, the offense robbery requires robbery by means 12 of “fear of injury” which satisfies the requirement of a threatened use of physical force. 13 Petitioner has not demonstrated more than a theoretical possibility that Hobbs Act 14 robbery can be committed with de minimus contact. This Court is in agreement with 15 the panel in Howard that Hobbs Act robbery in violation of 18 U.S.C. § 1951(b)(1) is 16 a categorical match to the force clause of § 924(c)(3)(A). 17 The offense CONCLUSION 18 Petitioner’s convictions in Counts 1 and 3 for interference with commerce by 19 robbery, in violation of 18 U.S.C. § 1951(a) remains a crime of violence under § 924(c). 20 Petitioner is not entitled to relief under 28 U.S.C. § 2255. 21 Rule 11(a) Governing § 2255 Cases in the U.S. Dist. Cts. provides that “[t]he 22 district court must issue or deny a certificate of appealability when it enters a final order 23 adverse to the applicant.” A petitioner is required to demonstrate only “that reasonable 24 jurists could debate the district court's resolution or that the issues are adequate to 25 deserve encouragement to proceed further.” Hayward v. Marshall, 603 F.3d 546, 553 26 (9th Cir. 2010) (en banc) (quoting Miller-El v. Cockrell, 537 U.S. 322, 336(2003). The 27 28 - 10 - 95CR0072 WQH 1 Court concludes that the issues raised in this appeal are appropriate for certificate of 2 appealability. 3 IT IS HEREBY ORDERED that motion to vacate, set aside, or correct the 4 sentence pursuant to 28 U.S.C. § 2255 filed by Defendant/Petitioner is denied. (ECF 5 No. 668). The Clerk is directed to close this case. Defendant/Petitioner is granted a 6 certificate of appealability. 7 DATED: February 9, 2017 8 9 WILLIAM Q. HAYES United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - 95CR0072 WQH
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