Fultz v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 is denied. The Court grants Petitioner a certificate of appealability. The Clerk is directed to close the associated civil case. Signed by Judge Dana M. Sabraw on 7/12/2017.(All non-registered users served via U.S. Mail Service)(aef)

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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 SOUTHERN DISTRICT OF CALIFORNIA 11 12 Petitioner, 13 14 15 16 Criminal Case No. 93-cr-0351 DMS Civil Case No. 16-cv-1558 DMS MARIO DENANE FULTZ, ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 v. UNITED STATES OF AMERICA, Respondent. 17 18 Pending before the Court is Petitioner Mario Denane Fultz’s Motion to 19 Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. Petitioner moves 20 to vacate his sentence pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015), 21 and Welch v. United States, 136 S. Ct. 1257 (2016). Respondent United States of 22 America opposes. For the reasons stated below, the Court denies the motion. 23 I. 24 BACKGROUND 25 On October 20, 1993, the jury found Petitioner guilty of two counts of robbery 26 on a government reservation, in violation of 18 U.S.C. § 2111 (counts one and three), 27 and two counts of using and carrying a firearm during and in relation to a crime of 28 violence, in violation of 18 U.S.C. § 924(c)(1) (counts two and four). –1– 93-cr-0351 1 The probation department prepared a Presentence Report and calculated a 2 guideline range of 63 to 78 months as to counts one and three. It also determined 3 Petitioner was subject to a five-year consecutive sentence as to count two and a 4 twenty-year consecutive sentence as to count four. At the sentencing hearing on 5 January 10, 1994, the Court sentenced Petitioner to a total sentence of 363 months, 6 consisting of 63 months as to counts one and two to run concurrently, 60 months as 7 to count two to run consecutively, and 240 months as to count four to run 8 consecutively. 9 On May 18, 2016, Petitioner filed the present motion, challenging his sentence 10 in light of the Supreme Court decision in Johnson. 1 Petitioner argues Johnson 11 renders the residual clause in 18 U.S.C. § 924(c)(3) unconstitutional, and further 12 argues Johnson applies retroactively on collateral review pursuant to Welch. Thus, 13 Petitioner contends he is entitled to relief because his convictions for robbery no 14 longer qualify as a crime of violence. 15 In opposition to Petitioner’s motion, Respondent argues Petitioner is not 16 entitled to relief for the following reasons: (1) Petitioner procedurally defaulted his 17 claims by failing to raise it on direct appeal, (2) Petitioner did not meet the burden 18 of proving he was convicted under the residual clause in § 924(c)(3), (3) Johnson 19 does not invalidate the residual clause in § 924(c)(3), and (4) Petitioner’s convictions 20 for robbery remain a crime of violence even if the residual clause in § 924(c)(3) is 21 rendered unconstitutional pursuant to Johnson. 22 /// 23 /// 24 25 1 26 27 28 Because the present motion is Petitioner’s second or successive § 2255 motion, Petitioner filed the motion protectively with this Court and filed an application for authorization to file a second or successive § 2255 motion with the Ninth Circuit. On January 23, 2017, the Ninth Circuit issued an order, granting Petitioner’s application. –2– 93-cr-0351 1 II. 2 LEGAL STANDARD 3 4 5 6 7 A prisoner in custody may move the federal court that imposed a sentence upon him to vacate, set aside, or correct that sentence on the ground that: the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack[.] 8 9 28. U.S.C. § 2255(a). If the court determines that relief is warranted under § 2255, 10 it must “vacate and set the judgment aside” and “discharge the prisoner or resentence 11 him or grant a new trial or correct the sentence as may appear appropriate.” Id. at 12 § 2255(b). 13 III. 14 DISCUSSION 15 Petitioner argues robbery under § 2111 is no longer a “crime of violence” 16 under 18 U.S.C. § 924(c) in light of Johnson. Section 924(c) defines “crime of 17 violence” as: 18 19 20 21 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 23 (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. 24 18 U.S.C. § 924(c)(3). Specifically, Petitioner contends robbery does not qualify as 25 a crime of violence under subdivision (A), the “force” clause, because it does not 26 require proof of intentional use or threatened use of violent physical force. Petitioner 27 further argues robbery also does not qualify as a crime of violence under subdivision 28 (B), the “residual” clause, because Johnson has rendered the clause 22 –3– 93-cr-0351 1 unconstitutionally vague. 2 Robber under § 2111, however, remains a crime of violence under the force 3 clause without reference to the residual clause. The language under § 2111, aside 4 from a special maritime and territorial jurisdictional requirement, is essentially 5 identical to that of § 2113, which prohibits armed bank robbery and a lesser-included 6 offense of bank robbery. In United States v. Wright, 215 F.3d 1020 (9th Cir. 2000), 7 the Ninth Circuit held that armed bank robbery under § 2113(a) qualifies as a crime 8 of violence, and thus, may serve as a predicate offense to support a conviction for 9 using or carrying a firearm under § 924(c). Id. at 1028. The Court reasoned, “18 10 U.S.C. § 924(c)(3) defines a crime of violence for purposes of § 924(c) as a felony 11 that ‘has as an element the use, attempted use, or threatened use of physical force 12 against the person or property of another.’ Armed bank robbery qualifies as a crime 13 of violence because one of the elements of the offense is a taking ‘by force and 14 violence, or by intimidation.’” Id. (quoting 18 U.S.C. § 2113(a)); see United States 15 v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990) (finding that “requirement that property 16 be taken either ‘by force and violence’ or ‘by intimidation’ requires proof of force 17 or threat of force as an element of the offense.”) (internal quotation marks and 18 citation omitted); United States v. Steppes, 651 F. App’x 697, 698 (9th Cir. 2016) 19 (citing Selfa and holding § 2113(a) qualifies as a crime of violence under the force 20 clause in § 4B1.2(a)). The analysis in Wright applies equally well to the present 21 action. Therefore, robbery under § 2111 remains a crime of violence under the force 22 clause in § 924(c)(3). 23 Even if robbery under § 2111 qualifies as a crime of violence under the 24 residual clause, Petitioner is not entitled to relief, because Johnson does not render 25 § 924(c)(3)(b) unconstitutionally vague. In Johnson, the Supreme Court found 26 unconstitutionally vague the residual clause of the Armed Career Criminal Act 27 (“ACCA”), 28 U.S.C. § 924(e)(2)(B). Johnson, 135 S. Ct. at 2551. The residual 28 clause defined a “violent felony” as one that “‘otherwise involves conduct that –4– 93-cr-0351 1 presents a serious potential risk of physical injury to another.’” Id. at 2555–56 2 (quoting 18 U.S.C. § 924(e)(2)(B)). In finding the residual clause unconstitutional, 3 the Court first reasoned the clause left “grave uncertainty about how to estimate the 4 risk posed by a crime” because “[i]t ties the judicial assessment of risk to a judicially 5 imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements.” 6 Id. at 2557. The Court also reasoned the clause left “uncertainty about how much 7 risk it takes for a crime to qualify as a violent felony” because it forced courts to 8 determine potential risk “in light of the four enumerated crimes—burglary, arson, 9 extortion, and crimes involving the use of explosives[, which] are ‘far from clear in 10 respect to the degree of risk each poses.’” Id. at 2558 (quoting Begay v. United 11 States, 553 U.S. 137, 143 (2008)). Accordingly, the Court concluded “imposing an 12 increased sentence under the residual clause of the [ACCA] violates the 13 Constitution’s guarantee of due process.” Id. at 2563. 14 Notably, the Supreme Court in Johnson considered the constitutionality of 15 ACCA’s residual clause, not § 924(c)(3)(B). See Johnson, 135 S. Ct. at 2551. 16 Moreover, the Court was clear in limiting the reach of its decision. Id. at 2554 17 (“Holding the residual clause void for vagueness does not put other criminal laws 18 that use terms such as ‘substantial risk’ in doubt, because those laws generally 19 require gauging the riskiness of an individual’s conduct on a particular occasion, not 20 the riskiness of an idealized ordinary case of the crime”); United States v. Moreno- 21 Aguilar, No. RWT 13-CR-0496, 2016 WL 4089563, at *8 (D. Md. Aug. 2, 2016) 22 (“Unmooring Johnson from this reasoning would potentially invalidate countless 23 statutes. See, e.g., 18 U.S.C. § 3559(c)(2)(F); 18 U.S.C. § 16(b); 18 U.S.C. 24 §§ 3142(f)(1)(A) and (g)(1); 18 U.S.C. § 521(d)(3)(C).”). 25 expressly stated, “As a general matter, we do not doubt the constitutionality of laws 26 that call for the application of a qualitative standard such as ‘substantial risk’ to real- 27 world conduct[.]” Johnson, 135 S. Ct. at 2561. 28 Indeed, the Court Currently, the Ninth Circuit has yet to address the issue of whether Johnson –5– 93-cr-0351 1 applies to the residual clause in § 924(c)(3). Other circuit courts, however, have 2 held Johnson does not render § 924(c)(3)(B) unconstitutionally vague because 3 several factors distinguish ACCA’s residual clause from § 924(c)(3)(B). See, e.g., 4 United States v. Hill, 832 F.3d 135, 144–50 (2d Cir. 2016); United States v. Davis, 5 No. 16-10330, 2017 WL 436037, at *2 (5th Cir. Jan. 31, 2017); United States v. 6 Taylor, 814 F.3d 340, 376–79 (6th Cir. 2016); United States v. Prickett, 839 F.3d 7 697, 698–700 (8th Cir. 2016). The Court finds the reasoning of these circuit 8 decisions persuasive. See United States v. Lasker, No. 10-CR-4732-DMS-1 (S.D. 9 Cal. Mar. 6, 2017); United States v. Averhart, No. 11-CR-1861-DMS (S.D. Cal. 10 Nov. 21, 2016). 11 Nevertheless, Petitioner argues the Court should not follow these circuit 12 precedents, but should rely on the Ninth Circuit’s decision in Dimaya v. Lynch, 803 13 F.3d 1110, 1120 (9th Cir. 2015) to find that § 924(c)(3)(B) is unconstitutionally 14 vague. In Dimaya, the Court found unconstitutionally vague the identically worded 15 definition of “crime of violence” in 16 U.S.C. § 16(b), as incorporated in the 16 Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101(a)(43)(F). Dimaya v. 17 Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015). 2 Dimaya, however, did not hold that 18 Johnson renders the definition of crime of violence in § 16(b) unconstitutionally 19 vague. The Court held unconstitutional the definition of aggravated felony in the 20 INA which includes § 16(b)’s crime of violence definition. Id. at 1114–20. Indeed, 21 the Court made clear its decision “does not reach the constitutionality of applications 22 of 18 U.S.C. § 16(b) outside of 8 U.S.C. § 1101(a)(43)(F) or cast any doubt on the 23 constitutionality of 18 U.S.C. § 16(a)’s definition of a crime of violence.” Id. at 24 1120 n.17. Although the languages in § 16(b) and § 924(c)(3)(B) are identical, the 25 issue of whether § 16(b) as incorporated into § 1101(a)(43)(F) is unconstitutional 26 27 28 2 The Supreme Court granted a petition for writ of certiorari in Dimaya on September 29, 2016. See Lynch v. Dimaya, No. 15-1498, 2016 WL 3232911 (U.S. Sept. 29, 2016). –6– 93-cr-0351 1 after Johnson is different from the issue of whether § 924(c)(3)(B) is 2 unconstitutional after Johnson. For example, the Sixth Circuit, like the Ninth 3 Circuit, has held § 16(b) as incorporated into § 1101(a)(43)(B) is unconstitutionally 4 vague after Johnson; the Court, however, also held Johnson does not render 5 §924(c)(3)(B) unconstitutionally vague. See Shuti v. Lynch, 828 F.3d 440, 441, 450– 6 51 (6th Cir. 2016); Taylor, 814 F.3d at 375–79. Therefore, Dimaya does not compel 7 the Court to hold § 924(c)(3)(B) unconstitutional. See, e.g., Mondragon-Hernandez 8 v. United States, No. 10-CR-3173-H-1, 2017 WL 1080600, at *4 (S.D. Cal. Mar. 22, 9 2017) (Dimaya does not control the issue of constitutionality of § 924(c)(3)(B)); 10 United States v. Sehorn, No. 16CV1573 WQH, 2017 WL 1336872, at *4 (S.D. Cal. 11 Feb. 17, 2017) (same). As a result, Petitioner is not entitled to relief. 12 IV. 13 CONCLUSION 14 For the foregoing reasons, Petitioner’s motion to vacate, set aside, or correct 15 sentence pursuant to 28 U.S.C. § 2255 is denied. The Court grants Petitioner a 16 certificate of appealability. The Clerk is directed to close the associated civil case. 17 18 IT IS SO ORDERED. Dated: July 12, 2017 19 20 21 22 23 24 25 26 27 28 –7– 93-cr-0351

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