Wilson v. United States of America

Filing 44

ORDER: 1. Judge Willett's R&R (Doc. 42 ) is accepted. 2. The government's renewed request for a stay (Doc. 43 at 1-2) is denied. 3. Wilson's § 2255 motion to vacate sentence (Doc. 27 ) is granted. 4. Wilson's conviction a nd sentence for use of a firearm in a crime of violence under § 924(c) (Case No. CR-04-01264, Docs. 29, 52) are vacated. 5. The Court will resentence Wilson on his second-degree murder conviction. The sentencing hearing will be set by separate order. (See Order for full details.) Signed by Senior Judge David G Campbell on 10/1/20. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Thomason Wilson,

No. CV-18-08108-PHX-DGC (ESW)
Movant/Defendant,

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vs.

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No. CR-04-01264-PCT-DGC

United States of America,

ORDER

Respondent/Plaintiff.

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Pursuant to 28 U.S.C. § 2255, Thomason Wilson moves to vacate his sentence for

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use of a firearm in a crime of violence. Doc. 27. Judge Willett has issued a report

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recommending that the motion be granted (“R&R”). Doc. 42. The government objects.

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Doc. 43. For reasons stated below, the Court will accept the R&R, grant Wilson’s

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motion, and set a resentencing hearing on Wilson’s conviction for second-degree murder.

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I.

Background.

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In March 2005, a jury convicted Wilson of second-degree murder in violation of

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18 U.S.C. § 1111 (count one) and use of a firearm in a crime of violence in violation of

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18 U.S.C. § 924(c) (count two). Case No. CR-04-01264, Doc. 29. Wilson was sentenced

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to a 135-month prison term on the murder conviction and a consecutive 120-month term

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on the § 924(c) conviction. Doc. 52. The Ninth Circuit affirmed the convictions and

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sentences. Doc. 69.

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Wilson filed a pro se motion to vacate his sentence on the § 924(c) conviction in

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May 2018. Doc. 1, Case No. CV-18-08108. He filed a second amended motion through

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appointed counsel in August 2019, arguing that the predicate crime of second-degree

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murder is no longer a “crime of violence” for purposes of § 924(c). Doc. 27 at 3-5 (citing

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United States v. Davis, 139 S. Ct. 2319, 2323 (2019) (holding that the residual clause in

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§ 924(c)(3)(B) is unconstitutionally vague)); see also United States v. Begay, 934 F.3d

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1033, 1041 (9th Cir. 2019) (“Second-degree murder is not categorically a crime of

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violence under the elements clause, 18 U.S.C. § 924(c)(3)(A). And, pursuant to Davis,

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second-degree murder cannot constitute a crime of violence under the residual clause,

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section 924(c)(3)(B)[.]”).

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In August 2019, Judge Willett granted Wilson’s motion to lift the stay that had

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been imposed pending the Ninth Circuit’s decision in Begay, and required the

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government to file a response to Wilson’s § 2255 motion.

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government moved for a stay of Judge Willett’s order pending an en banc decision in

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United States v. Orona, 923 F.3d 1197 (9th Cir. 2019), and any further proceedings in

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Begay. Doc. 29 at 2. The government asserted that the en banc panel in Orona will

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“address the same issue posed in Begay – whether a crime of violence can be committed

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recklessly, in light of the United States Supreme Court’s decision [in] Voisine v. United

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States, 136 S. Ct. 2272 (2016).” Id. Judge Willett recommended that the motion to stay

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be denied, finding it significant that Wilson may be released from prison if his § 924(c)

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conviction is vacated because he completed his sentence for second-degree murder in

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early 2014 and had served more than five years of the § 924(c) sentence. Doc. 30 at 2-3

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(citing United States v. Carcamo, No. CR 08-0730 WHA, 2016 WL 5897735, at *1 (N.D.

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Cal. Oct. 11, 2016) (denying stay “in light of the fact that defendant could possibly be

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sentenced to time served if his 2255 motion is granted”)).1 Judge Willett concluded that

Doc. 26 at 1-2.

The

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Wilson presently is confined at the United States Penitentiary-McCreary.
His projected release date is March 10, 2024. See Federal Bureau of Prisons, Find an
Inmate, https://www.bop.gov/mobile/find_inmate/byname.jsp#inmate_results (last visited
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staying this matter pending completion of further proceedings in Orona and Begay would

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be unduly prejudicial to Wilson. Id. at 3. The government objected. Doc. 31.

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The Court agreed with Judge Willett, noting that “[a]lthough rehearing rulings in

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Orona and Begay may be instructive on the legal issue at the heart of Wilson’s motion to

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vacate his § 924(c) sentence, it is not reasonable to conclude that the rulings will be

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issued ‘in the very near term.’” Doc. 35 at 4 (quoting Doc. 31 at 3). The Court found

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that the prejudice to Wilson from a stay was not outweighed by the interests of judicial

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economy or the government’s desire to delay filing a response to Wilson’s § 2255

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motion.

Id.

The Court accepted Judge Willett’s recommendation and denied the

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government’s motion to stay. Id. at 5. The government filed a response to Wilson’s

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§ 2255 motion on April 22, 2020, and Wilson filed a reply one month later. Docs. 38, 41.

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II.

Judge Willett’s R&R (Doc. 42).

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Judge Willett recommends that Wilson’s motion be granted because the

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government does not dispute that his § 924(c) conviction predicated on second-degree

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murder is invalid under Begay. Doc. 42 at 4-5. Judge Willett rejected the government’s

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argument that a ruling on Wilson’s motion should await the Supreme Court’s decision in

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United States v. Borden, 769 F. App’x 266 (6th Cir. 2019), cert. granted, No. 19-5410,

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2020 WL 981806 (U.S. Mar. 2, 2020), and recommends that the government’s renewed

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request for a stay be denied. Id.2

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III.

Standard of Review.

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This Court “may accept, reject, or modify, in whole or in part, the findings or

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1). The Court

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“must review the magistrate judge’s findings and recommendations de novo if objection

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is made, but not otherwise.” United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.

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Sept. 29, 2020).
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The question presented in Borden is whether the “force clause” in 18 U.S.C.
§ 924(e)(2)(B)(i) encompasses crimes with a mens rea of mere recklessness. Borden, No.
19-5410, https://www.supremecourt.gov/qp/19-05410qp.pdf (last visited Sept. 29, 2020).
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2003) (en banc). The Court is not required to conduct “any review at all . . . of any issue

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that is not the subject of an objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985);

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see also 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3).

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IV.

The Government’s Objection.

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The government does not object to Judge Willett’s conclusion that Wilson’s

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“§ 924(c) conviction is invalid under current, binding Ninth Circuit precedent.” Doc. 41

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at 5 (citing Begay, 934 F.3d at 1041 (holding that the movant’s § 924(c) conviction

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predicated on second-degree murder “cannot stand under either the elements clause or

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residual clause of § 924(c)(3)”)). The government notes that the Supreme Court set oral

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argument in Borden for November 3, 2020, arguing that “[w]hile there will still be some

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time between oral argument and when the Supreme Court issues its ruling in Borden, the

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relatively brief delay would not constitute an ‘indefinite, potentially lengthy stay in a

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habeas case’ and as such is distinguishable from Yong v. INS, 208 F.3d 1116, 1120 (9th

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Cir. 2000)).” Doc. 43 at 2-3. But it is not clear that the delay between oral argument and

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the decision in Borden will be “relatively brief.” The Supreme Court may not issue a

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decision until June 2021, and, if the case is heard with only eight members on the Court,

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it is conceivable that the case could be held over for additional argument once the Court

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is at full strength. As Judge Willett also noted, additional delay could occur while

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awaiting further decisions in Orona and Begay once Borden is decided. Doc. 42 at 5.

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Because Wilson already has served more than six years of his § 924(c) sentence,

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further delay in ruling on his § 2255 would be unduly prejudicial. The Court accordingly

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will accept Judge Willett’s recommendation that the government’s renewed request for a

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stay be denied and that Wilson’s § 2255 motion be granted. See id.

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The government argues that if Wilson’s motion were to be granted, he should “be

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resentenced because at that point the sentence package would be unbundled[.]” Doc. 43

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at 3 (citing United States v. Avila-Anguiano, 609 F.3d 1046, 1049 (9th Cir. 2005) (“When

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a defendant is sentenced to multiple counts and one of them is later vacated on appeal,

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the sentence package becomes unbundled. The district court then has the authority to put

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together a new package reflecting its considered judgment as to the punishment the

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defendant deserved for the crimes of which he was still convicted.”).

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concludes that resentencing on the second-degree murder conviction is appropriate. See

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Davis, 139 S. Ct. at 2336 (“When a defendant’s § 924(c) conviction is invalidated, courts

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of appeals ‘routinely’ vacate the defendant’s entire sentence on all counts ‘so that the

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district court may increase the sentences for any remaining counts’ if such an increase is

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warranted.’”) (citation omitted); Rodriguez-Rios v. United States, No. CR-08-01442-004-

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SRB, 2020 WL 289504, at *2 n.7 (D. Ariz. Jan. 21, 2020) (“When a defendant is

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sentenced on multiple counts and one of them is later vacated, the sentencing package

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becomes ‘unbundled,’ and the district court may fashion a new package reflecting its

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consideration of the appropriate punishment as to the remaining counts.”) (citing United

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States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000)); United States v. Green, No.

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2:04-CR-00233, 2020 WL 4034834, at *8 (W.D. Pa. July 17, 2020) (“A defendant’s

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entire sentence merits review under the sentencing package doctrine if the sentencing

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court viewed the original sentence as a package. When one such component is set aside,

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or ‘unbundled,’ the Court has the authority to recalculate the sentence.”) (citations

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omitted).

The Court

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IT IS ORDERED:

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1.

Judge Willett’s R&R (Doc. 42) is accepted.

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2.

The government’s renewed request for a stay (Doc. 43 at 1-2) is denied.

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3.

Wilson’s § 2255 motion to vacate sentence (Doc. 27) is granted.

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4.

Wilson’s conviction and sentence for use of a firearm in a crime of violence

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under § 924(c) (Case No. CR-04-01264, Docs. 29, 52) are vacated.
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The Court will resentence Wilson on his second-degree murder conviction.

The sentencing hearing will be set by separate order.
Dated this 1st day of October, 2020.

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