Eschief v. USA

Filing 18

ORDER accepting Magistrate Judge Eileen S. Willett's 17 Report and Recommendation with the following exception: the Court rejects the Report and Recommendation's procedural default analysis. IT IS FURTHER ORDERED dismissing with prejud ice Movant's Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody. (Doc. 287 in CR-98-00353-PHX-SMM and Doc. 4 in CV-17-01378-PHX-SMM.) Signed by Senior Judge Stephen M McNamee on 9/27/2018. (ATD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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William Eschief,
Petitioner,

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v.

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ORDER

United States of America,

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No. CV-17-01378-PHX-SMM
No. CR-98-00353-PHX-SMM

Respondent.

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Before the Court is William Eschief’s (“Movant”) Amended Motion Under 28

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U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody

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(“Amended Motion”). (Doc. 4.)1 The matter was referred to Magistrate Judge Eileen S.

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Willett for a Report and Recommendation. (Docs. 2, 5.) On May 25, 2018, the Magistrate

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Judge filed a recommendation with this Court. (Doc. 17.) To date, no objections have been

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filed. Having reviewed the Report and Recommendation, the Court now issues the

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following ruling.

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I.

STANDARD OF REVIEW

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When reviewing a Magistrate Judge’s Report and Recommendation, this Court must

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“make a de novo determination of those portions of the report…to which objection is

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made,” and “may accept, reject, modify, in whole or in part, the findings or

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recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1)(C); see Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991) (citing Britt v. Simi Valley Unified Sch.

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Citations to “Doc.” are to the docket in CV-17-01378-PHX-SMM. Citations to
“CR Doc.” are to the docket in the underlying criminal case, CR-98-00353-PHX-SMM.

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Dist., 708 F.2d 452, 454 (9th Cir. 1983)). Parties have fourteen days from service of a copy

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of a Magistrate’s recommendation within which to file specific written objections to the

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Court. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6, 72. Failure to object to a Magistrate Judge’s

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recommendation relieves the Court of conducting a de novo review of the Magistrate

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Judge’s factual findings; the Court then may decide the dispositive motion on the

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applicable law. Orand v. United States, 602 F.2d 207, 208 (9th Cir. 1979) (citing Campbell

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v. United States Dist. Court, 501 F.2d 196 (9th Cir. 1974)).

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By failing to object to a Report and Recommendation, a party waives its right to

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challenge the Magistrate’s factual findings, but not necessarily the Magistrate’s legal

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conclusions. Baxter, 923 F.2d at 1394; see also Turner v. Duncan, 158 F.3d 449, 455 (9th

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Cir. 1998). A failure to object to a Magistrate Judge’s legal conclusion “is a factor to be

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weighed in considering the propriety of finding waiver of an issue on appeal.” Turner, 158

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F.3d at 455.

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DISCUSSION2

II.

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The Court accepts the Magistrate Judge’s recommendation that Movant’s Amended

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Motion be dismissed with prejudice; however, the Court does not adopt the procedural

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default analysis that the Magistrate Judge employed to arrive at her conclusion. (Doc. 17

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at 3.)

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A. Procedural Default Analysis

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The Report and Recommendation’s procedural default analysis is inapplicable to

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Movant’s case because Movant waived the right to directly appeal his sentence. “A § 2255

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movant procedurally defaults his claims by not raising them on direct appeal and not

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showing cause and prejudice or actual innocence in response to the default.” United States

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v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (citation omitted). Here, Movant waived the

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right to directly appeal and collaterally attack his sentence in his plea agreement. (CR Doc.

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158 at 4.)3 However, the Report and Recommendation appears to overlook this fact.

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The factual and procedural history of this case is set forth in the Magistrate Judge’s
Report and Recommendation. (Doc. 17 at 2.)
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The Court relies on the Government’s discussion of Movant’s criminal case, CR98-00353-PHX-SMM, as addressed in the Government’s Limited Answer to: Motion
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Instead, the Report and Recommendation states “[i]t is undisputed that Movant did not

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raise the claims contained in his Amended Motion to Vacate on direct appeal”; “[t]he issue

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is whether the procedural defaults should be excused.” (Doc. 17 at 3.) The Court finds that

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Movant’s waiver rendered the procedural default analysis inapplicable. Thus, the Court

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does not adopt the Magistrate Judge’s procedural default analysis for the reasons set forth

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below.

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B. Movant’s Claims

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Movant claims that he was sentenced using an incorrect criminal history score and

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that carjacking cannot serve as a predicate felony for a 18 U.S.C. § 924(c) conviction as it

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no longer constitutes a crime of violence. (Doc. 4 at 5.) The Court agrees with the

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Magistrate Judge’s conclusion that Movant’s petition fails on the merits and accepts the

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Magistrate Judge’s recommendation that Movant’s Amended Motion should be dismissed

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with prejudice. (Doc. 17 at 8.)

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1. Challenge to Movant’s Criminal History Score

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In his petition, Movant argues that he was sentenced under an incorrect criminal

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history score and should have been “sentenced under a Criminal History of I.” (Doc. 4 at

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5.) The Court accepts the Magistrate Judge’s finding that Movant was sentenced under a

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“Criminal History Category I” and accepts the Magistrate Judge’s conclusion that

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Movant’s claim is without merit. (Docs. 13 at 13; 17 at 4.)

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2. Challenge to Movant’s 18 U.S.C. § 924(c) conviction

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In his petition, Movant argues that “18 [U.S.C.] § 2119 [carjacking] is no longer

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deemed a violent offence [sic] for an 18 [U.S.C.] § 924(c) conviction[.]” (Doc. 4 at 5.) The

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Court interprets Movant’s argument as asserting that his carjacking conviction does not

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qualify as a crime of violence under the Force Clause of § 924(c); the Court also construes

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Movant’s argument as relying on Johnson v. United States, 135 S. Ct. 2551 (2015) for the

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position that the Residual Clause is unconstitutionally vague and cannot be used to support

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Movant’s § 924(c) conviction. Id. For the reasons stated herein, the Magistrate Judge

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Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody. (Doc. 11 at 3.)
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correctly finds that carjacking is a crime of violence under the Force Clause of § 924(c),

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and therefore, the Court finds Movant’s argument is without merit. (Doc. 17 at 8.)

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Section 924(c) is a sentencing enhancement provision for individuals who use or

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carry firearms during and in relation to a “crime of violence or drug trafficking crime.” 18

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U.S.C. § 924(c)(1)(A). An offense constitutes a “crime of violence” if it is a felony and

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qualifies under either the “Force Clause” or the “Residual Clause” of 18 U.S.C. § 924(c)(3).

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A person commits carjacking by taking a motor vehicle “from the person or presence of

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another by force and violence or by intimidation” and “with the intent to cause death or

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serious bodily harm.” 18 U.S.C. § 2119.

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In Johnson, the Supreme Court found that the Residual Clause of 18 U.S.C. § 924(e)

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was unconstitutionally vague. 135 S. Ct. at 2557-58. Johnson did not address the Residual

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Clause of § 924(c), and the Ninth Circuit Court of Appeals has not addressed whether §

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924(c)’s Residual Clause is unconstitutionally vague pursuant to Johnson. However, in

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Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015), the Ninth Circuit held that the

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Residual Clause of 18 U.S.C. § 16(b) was unconstitutionally vague, and the Supreme Court

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later affirmed that holding. See Sessions v. Dimaya, 138 S. Ct. 1204, 1223 (2018). As the

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Magistrate Judge notes, § 16(b)’s definition of crime of violence is virtually identical to §

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924(c)’s definition of crime of violence. (Doc. 17 at 6, n.3.) As a result, some district courts

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have found that Dimaya compels the conclusion that the Residual Clause of § 924(c) is

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unconstitutionally vague. See Wade v. United States, 242 F. Supp. 3d 974, 979 (C.D. Cal.

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2017); see also Gaybor v. United States, No. CV-16-04598-PHX-SMM, 2018 WL

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4519200, at *6 (D. Ariz. May 9, 2018).

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As the Report and Recommendation correctly notes, regardless of the

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constitutionality of § 924(c)’s Residual Clause, carjacking is categorically a crime of

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violence under § 924(c)’s Force Clause, see United States v. Gutierrez, 876 F.3d 1254,

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1256-57 (9th Cir. 2017) (per curiam), and thus, Movant’s conviction would be upheld

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under § 924(c)’s Force Clause. (Doc. 17 at 6-8.) Therefore, the Court concurs with the

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Magistrate Judge and finds that Movant’s claim is without merit.

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Accordingly,

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IT IS HEREBY ORDERED accepting Magistrate Judge Eileen S. Willett’s Report

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and Recommendation with the following exception: the Court rejects the Report and

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Recommendation’s procedural default analysis. (Doc. 17.)

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IT IS FURTHER ORDERED dismissing with prejudice Movant’s Amended

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Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in

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Federal Custody. (Doc. 287 in CR-98-00353-PHX-SMM and Doc. 4 in CV-17-01378-

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PHX-SMM.)

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Dated this 27th day of September, 2018.

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Honorable Stephen M. McNamee
Senior United States District Judge

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