Blackeagle v. USA

Filing 10

MEMORANDUM DECISION AND ORDER. IT IS ORDERED that: 1. The Government's Motion to Stay (Dkt. 3 ) is DENIED. 2. The Government's Motion to Dismiss (Dkt. 5 ) is GRANTED and Defendant's Motion to Vacate under 28 U.S.C. § 2255 (Dkt. 1 ) is DISMISSED. Defendant's Motion for Leave to File Excess Pages (Dkt. 8 ) is retroactively GRANTED. 4. The Court does not find its resolution of this habeas matter to be reasonably debatable, and a certificate of appealability will not iss ue. If Petitioner wishes to appeal, he must file a timely notice of appeal with the Clerk of Court. Petitioner may seek a certificate of appealability from the Ninth Circuit by filing a request in that court. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
ANDREW TONY BLACKEAGLE,
Case No. 3:16-cv-00245-BLW
Petitioner,
MEMORANDUM DECISION AND
ORDER

v.
UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
Before the Court is Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence
Under 28 U.S.C. § 2255 (Dkt. 1), the Government’s Motion to Stay (Dkt. 3), and the
Government’s Motion to Dismiss (Dkt. 5). Having fully reviewed the record, the Court
finds that the facts and legal arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and because the Court conclusively
finds that the decisional process would not be significantly aided by oral argument, the
motions shall be decided on the record before this Court without oral argument. For the
reasons explained below, the Court will deny the motion to stay and will grant the
government’s motion to dismiss the petition.
BACKGROUND
A.

Factual Background
On August 23, 2013, Defendant Andrew Tony Blackeagle pleaded guilty to

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assault with a dangerous weapon. The United States Probation Office prepared a
Presentence Investigation Report (PSR), which calculated Blackeagle’s Total Offense
Level as 21. The Total Offense Level would have been 18 but for a three-level
enhancement applied under § 4B1.1(a) of the United States Sentencing Guidelines, based
on the PSR’s conclusion that Blackeagle was a “career offender.” See PSR, Cr. Dkt. 26 1,
¶ 22. To qualify as a career offender, a defendant must have committed at last two prior
drug crimes or “crimes of violence.” See U.S.S.G. § 4B1.1(a). 2 Here, the PSR concluded
that Blackeagle had committed two prior crimes of violence: (1) assault with a deadly
weapon; and (2) attempted strangulation. PSR, Cr. Dkt. 26, ¶ 22.
A “crime of violence” is defined in Guidelines § 4B1.2 as follows:
(a) The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that –
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(2) is burglary of a dwelling, arson, or extortion, involves the use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.

1

In this decision, “Cr. Dkt.” refers to the Court’s docket in the underlying criminal case, United
States v. Blackeagle, No. 3:13-cr-00043 (D. Idaho).
2

Section 4B1.1(a) states: “A defendant is a career offender if (1) the defendant was at least
eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant
offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled
substance offense.”

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U.S.S.G. § 4B1.2(a) (emphasis added).
The emphasized language – contained in both subsections (a)(1) and (a)(2) – is
key to this petition. The emphasized language in subsection (a)(1) has come to be known
as the “force” clause, or the “elements” clause. The Supreme Court has clarified that the
force mentioned in this section must be “violent force – that is, force capable of causing
physical pain or injury to another person.” See Johnson v. United States, 559 U.S. 133,
140 (2010). Subsection (a)(2) identifies enumerated offenses—burglary of a dwelling,
arson, extortion, and offenses involving the use of explosives—and then contains an
“otherwise involves” clause (emphasized above). The “otherwise involves” clause is
more commonly referred to as the “residual clause.” See Chambers v. United States, 555
U.S. 122, 124 (2009).
In this case, Blackeagle did not object to the PSR’s conclusion that he was a career
offender, nor did he ask the Court to make any specific findings regarding the underlying
conclusion that his prior two convictions qualified as “crimes of violence.” In other
words, he did not ask the Court to clarify whether his prior convictions qualified as
crimes of violence under any particular clause of Guidelines §4B1.2(a).
At the November 5, 2013 sentencing hearing, the Court adopted the PSR’s
findings and sentencing calculations, thus concluding that Blackeagle was a career
offender under § 4B1.1(a) based on his two prior convictions for “crimes of violence.”
See Presentence Investigation Report, Cr. Dkt. 26, ¶ 22; Statement of Reasons, Cr. Dkt.
31, ¶ 1.A. The Court also adopted the advisory Guidelines range set forth in the PSR,

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which was 77 to 96 months’ imprisonment, corresponding to a Total Offense Level of 21
and a Criminal History Category of VI. See Statement of Reasons, Cr. Dkt. 31, ¶ III.
The Court imposed a below-guidelines sentence of 67 months’ imprisonment, to
be followed by three years of supervised release. See Jdgmt., Cr. Dkt. 32. The Court
explained that it “reduced the term of imprisonment by ten months [from 77 months to 67
months] to credit the defendant time in custody that most likely would not be credited to
him by the Bureau of Prisons.” Statement of Reasons, Cr. Dkt. 31, ¶ V.D.
On June 20, 2016, Blackeagle filed the pending § 2255 motion seeking to vacate
his sentence in light of United States Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2241 (2015). As explained further below, Blackeagle says that under
Johnson, he should not have received the three-level career-offender enhancement
because one of his prior convictions – attempted strangulation – does not qualify as a
“crime of violence” in light of Johnson. Thus, according to Blackeagle, his advisory
Guidelines range should have been 57 to 71 months of imprisonment (rather than 77 to
96 months), corresponding to a Total Offense Level of 18.
B.

Legal Background
In Johnson, the Supreme Court addressed a challenge to the residual clause of the

Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), which provides that a
defendant with three prior “violent felony” convictions faces a fifteen-year mandatoryminimum sentence if convicted of violating 18 U.S.C. § 922(g). 18 U.S.C. § 924(e). The
ACCA residual clause definition of “violent felony,” which encompasses any crime that

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“involves conduct that presents a serious potential risk of physical injury to another,” is
identical to the residual clause of the Guidelines’ definition “crime of violence.”
The Johnson Court held that the residual clause is so vague that it “both denies fair
notice to defendants and invites arbitrary enforcement by judges.” 135 S. Ct. at 2557.
Accordingly, Johnson held that an increase to a defendant's sentence under the clause
“denies due process of law.” In Welch v. United States, 136 S. Ct. 1257, 1268 (2016), the
Supreme Court held that Johnson is retroactive as applied to the ACCA. However,
neither the Supreme Court nor the Ninth Circuit has addressed whether Johnson is
retroactive as to the identical language in the Sentencing Guidelines.
LEGAL STANDARD
A prisoner in custody under sentence of a federal court, making a collateral attack
against the validity of his or her conviction or sentence, must do so by way of a motion to
vacate, set aside or correct the sentence pursuant to 28 U.S.C. § 2255 in the court that
imposed the sentence. Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988). Section
2255 was intended to alleviate the burden of habeas corpus petitions filed by federal
prisoners in the district of confinement by providing an equally broad remedy in the more
convenient jurisdiction of the sentencing court. United States v. Addonizio, 442 U.S. 178,
185 (1979). Under 28 U.S.C. § 2255, a federal sentencing court may grant relief if it
concludes that a prisoner in custody was sentenced in violation of the Constitution or
laws of the United States.
DISCUSSION

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Blackeagle’s ultimate argument has two parts: First, he says that the residual
clause in the Career Offender Guidelines – which is identically worded to the residual
clause in the ACCA at issue in Johnson – is unconstitutionally vague. Second, he says
his prior conviction for attempted strangulation cannot qualify as a crime of violence
without relying on the Guidelines’ residual clause. Blackeagle thus concludes that his
sentence is illegal and that he should be re-sentenced without the career-offender finding
in place.
The Court is not persuaded. Even assuming Blackeagle is correct on his first
argument – that the residual clause in the Guidelines is unconstitutional – Blackeagle’s
second argument lacks merit because his prior conviction for attempted strangulation
qualifies as a crime of violence under the “force” clause of Guidelines § 4B1.1(a). As a
result, Blackeagle was properly designated as a career offender without relying on the
residual clause.
Before the Court can address these issues, however, it will first address three
preliminary issues raised by the government: (1) whether the Court should stay these
proceedings until the Supreme Court decides whether the residual clause in the
Guidelines is unconstitutional; (2) whether Blackeagle waived his right to challenge his
sentence in a post-conviction proceeding; and (3) whether Blackeagle’s claims are
procedurally barred.
1.

Motion to Stay

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On June 27, 2016, the United States Supreme Court granted certiorari in United
States v. Beckles, 616 Fed. Appx. 415 (11th Cir. 2015), cert. granted, 136 S. Ct. 2510
(2016), to address three questions: (1) whether Johnson applies retroactively to collateral
cases challenging federal sentences enhanced under the residual clause in United States
Sentencing Guidelines § 4B1.2(a)(2); (2) whether Johnson’s constitutional holding
applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to
sentences enhanced under it cognizable on collateral review; and (3) whether mere
possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in
commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson. See
www.scotusblog./cases-files/cases/beckles-v-united-states (last visited Jan. 4, 2017). The
first two questions are at issue in these proceedings. The government therefore asks the
Court to stay ruling on Blackeagle’s § 2255 motion until the Supreme Court decides
Beckles.
A Court’s power to stay proceedings pending the resolution of another case is
“incidental to the power inherent in every court to control the disposition of the causes on
its docket with economy of time and effort for itself, for counsel, and for litigants.”
Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). “A trial court may, with propriety, find it
is efficient for its own docket, and the fairest course for the parties to enter a stay of an
action before it, pending resolution of independent proceedings which bear upon the
case.” Leyva v. Certified Grocers of Cal., 593 F.2d 857, 863 (9th Cir. 1979). In
determining whether a stay is appropriate, the court must weigh “the competing interests

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which will be affected by the granting or refusal to grant a stay.” Lockyer v. Mirant
Corp., 398 F.3d 1098, 1109 (9th Cir. 2005) (citation omitted). The “proponent of a stay
bears the burden of establishing its need.” Clinton v. Jones, 520 U.S. 681, 709 (1997)
(citing Landis, 299 U.S. at 255). If there is “even a fair possibility” of harm to the
opposing party, the moving party “must make out a clear case of hardship or inequity in
being required to go forward.” Lockyer, 398 F.3d at 1112 (citing Landis, 299 U.S. at
254). In habeas cases, “special considerations” are implicated “that place unique limits on
a district court’s authority to stay a case in the interests of judicial economy.” See Yong v.
INS, 208 F.3d 1116, 1120 (9th Cir. 2000). If a stay is especially long or its term is
indefinite,” the Court “require[s] a greater showing to justify it.” Id. at 1119.
Blackeagle argues that a stay is not justified because if he is successful in these
proceedings, he will be eligible for immediate release from prison. Blackeagle’s
anticipated release date of November 23, 2017 is now less than a year away. See
www.bop.gov.inmatelocator (last visited Jan. 4, 2017). This release date, which
presumably includes good-time credit, is based on the 67-month sentence this Court
imposed in 2013. That sentence, in turn, was a below-guidelines sentence. Specifically,
as noted above, Blackeagle’s guidelines range of 77 to 96 months’ imprisonment was
based on an adjusted offense level of 21 and a Criminal History Category of VI. If the
Court were to accept Blackeagle’s argument in these proceedings, his adjusted offense
level would be an 18, with a resulting Guidelines range of 57 to 71 months’
imprisonment. Of course, this Court’s 67-month sentence falls within that range, but

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Blackeagle is implicitly arguing that, without the career-offender enhancement, the Court
would have sentenced him to 47 months’ imprisonment, which is 10 months less than the
low end of the recalculated guidelines range. If that were the case, Blackeagle would be
eligible for immediate release from prison.
Under this analysis, there is, in theory at least, a fair possibility that a stay would
damage Blackeagle by delaying his release from prison. Although it would conserve
judicial resources to wait for the Supreme Court’s decision in Beckles, defendants’
potential right to an immediate release outweighs considerations of judicial economy.
The Court will therefore deny the government’s motion to stay, though it will reserve
ruling on whether a stay would be appropriate in cases where defendant’s likely release
date is after Beckles is likely to be decided. Cf. United States v. Rodriguez, No. 13–
20405, 2016 WL 4124096, at *1 (E.D. Mich. Aug. 3, 2016) (granting motion to stay
where the defendant did not object and the “defendant would be unlikely to receive a
sentence that would result in his release before mid-2017”).
2.

Waiver
As part of his plea agreement, Blackeagle waived his right to file a § 2255 motion,

except for a claim of ineffective assistance of counsel based upon information not known
at the time of sentencing. See Plea Agmt., Cr. Dkt. 5, ¶ VI(B) at 5-6. The government
thus argues that Blackeagle waived his right to file this petition. See Mot., Dkt. 5, at 6-8.
Plea agreements are “essentially contracts” and are to be enforced pursuant to their
literal terms, construing any ambiguities in the defendant's favor. United States v.

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Heredia, 768 F.3d 1220, 1230 (9th Cir. 2014). “A waiver of appellate rights ‘is
enforceable if (1) the language of the waiver encompasses the defendant's right to appeal
on the grounds raised, and (2) the waiver is knowingly and voluntarily made.’” United
States v. Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2015) (quoting United States v.
Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005)).
But even if a defendant's waiver meets this criteria, the appeal waiver will not
apply if: (1) a defendant's guilty plea failed to comply with Federal Rule of Criminal
Procedure 11; (2) the sentencing judge informs a defendant that he or she retains the right
to appeal; (3) the sentence does not comport with the terms of the plea agreement; or (4)
the sentence violates the law. United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007)
(collecting cases).
Here, only the last exception – that the sentence violates the law – is potentially
applicable. The Ninth Circuit has held that if Johnson nullifies the residual clause of the
Career Offender Guidelines, sentences rendered pursuant to that clause are likely
unconstitutional and would be “illegal,” and thus waivers in plea agreements cannot bar
collateral attacks on that basis. United States v. Torres, 828 F.3d 1113, 1125 (9th Cir.
2016). Accordingly, the Court must determine whether Blackeagle’s sentence “violates
the law” to determine whether the waiver applies. Ultimately, then, whether the waiver
may be enforced, and whether Blackeagle has proved a valid constitutional claim under
Johnson, collapse into the same inquiry. Because the Court ultimately concludes that
Blackeagle’s sentence does not violate the Constitution, his waiver is enforceable.

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3.

Procedural Default
The government also argues that Blackeagle procedurally defaulted on his § 2255

petition. To overcome procedural default, Blackeagle must demonstrate (1) “cause” and
(2) “actual prejudice resulting from the errors of which he complains.” United States v.
Frady, 456 U.S. 152, 168 (1982).
Blackeagle may demonstrate “cause” by establishing that “the factual or legal
basis for a claim was not reasonably available to counsel” at the time of sentencing.
Murray v. Carrier, 477 U.S. 478, 488 (1986). A constitutional claim is not “reasonably
available” if the Supreme Court decision establishing the claim: (1) explicitly overrules
one of the Court’s precedents; (2) overturns a longstanding and widespread practice to
which the Court has not spoken, “but which a near-unanimous body of lower court
authority has expressly approved; or (3) disapproves a practice that the Court “arguably
has sanctioned in prior cases.” Reed v. Ross, 468 U.S. 1, 16 (1984).
Here, Johnson expressly overruled prior Supreme Court cases that upheld the
ACCA’s residual cause, including James v. United States, 550 U.S. 192 (2007), and
Sykes v. United States, 564 U.S. 1 (2011). See Johnson, 135 S. Ct. at 2563. Thus, before
Johnson, a vagueness challenge to the residual clause of the ACCA, or, by extension, the
Career Offender Guidelines – was foreclosed by James and Sykes. Accordingly,
Blackeagle has demonstrated cause.
As for prejudice, Blackeagle contends that “the constitutional error he challenges
resulted in the Court’s calculation of an erroneously high Guidelines range.” Reply, Dkt.

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9, at 22. The Court is not persuaded. For the reasons explained below, the Court’s
calculation of Blackeagle’s advisory Guidelines range was correct – notwithstanding the
Supreme Court’s holding in Johnson. Accordingly, Blackeagle cannot demonstrate
actual prejudice and his petition is procedurally defaulted.
4.

Blackeagle Was Properly Designated as a Career Offender without Resort to
the Guidelines’ Residual Clause
A central assumption in Blackeagle’s argument is that this Court had no choice but

to rely on the Guidelines’ residual clause to conclude that Blackeagle was a career
offender. This assumption is key, because the other clauses of the Guidelines’ crime-ofviolence definition have not been called into question. That is, although Johnson
invalidated the ACCA’s residual clause, it did “not call into question application of the
[ACCA] to the four enumerated offenses, or the remainder of the ACCA’s definition of a
violent felony.” 135 S. Ct. at 2563. Similarly, Johnson did not call into question the
remainder of the Career Offender Guideline’s definition of a crime of violence, including
its enumerated offense clause and its elements, or “force,” clause. Thus, if at sentencing,
this court did not necessarily rely on the residual clause but could have instead relied on
the “force” clause, then Blackeagle is not entitled to the relief he seeks.
As noted above, the Probation Officer did not specify which clause he relied upon
to conclude that Blackeagle’s prior convictions (assault with a deadly weapon and
attempted strangulation) qualified as “crimes of violence.” Neither party requested a
more specific finding, and, accordingly, the Court made none.
But this lack of a specific finding ultimately does not matter because Blackeagle’s

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prior conviction qualifies as a crime of violence under the “force” clause of the
Guidelines. For ease of reference, the Court will restate Guidelines section 4B1.2’s
definition of a crime of violence here:
(b) The term “crime of violence” means any offense under federal or
state law, punishable by imprisonment for a term exceeding one
year, that –
(1) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(2) is burglary of a dwelling, arson, or extortion, involves the use
of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
U.S.S.G. § 4B1.2(a) (emphasis added).
The Court will assume that the second subsection does not apply. Blackeagle’s
prior conviction – attempted strangulation – is not one of the four enumerated offenses.
And following the Supreme Court’s decision in Johnson, the residual clause of
§ 4B1.2(a)(2) that reads “or otherwise involves conduct that presents a serious potential
risk of physical injury to another” may well be unconstitutionally vague. See Johnson v.
United States, 135 S. Ct. 2551, 2557 (2015) (holding the residual clause of the ACCA to
be unconstitutionally vague); United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir.
2013) (quoting United States v. Crews, 621 F.3d 849, 852 n.4 (9th Cir. 2010) (“The Ninth
Circuit makes ‘no distinction between the terms ‘violent felony’ as defined in the ACCA
and ‘crime of violence’ as defined in § 4B1.2(a)(2) of the Sentencing Guidelines for
purposes of interpreting the residual clauses.”).

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So the question is whether attempted strangulation qualifies as a crime of violence
under the first subsection – the “force clause.” The force clause asks whether the prior
conviction “has as an element the use, attempted use, or threatened use of physical force
against the person of another.” U.S.S.G. § 4B1.2(a)(a).
A. The Governing Legal Standard
The Court employs the three-step categorical approach to determine whether a
defendant’s prior conviction satisfies the Guidelines’ definition of a crime of violence.
See, e.g., Spencer, 724 F.3d at 1137; see also Lopez-Valencia v. Lynch, 798 F.3d 863,
867-68 (9th Cir. 2015).
At step one, the Court compares the elements of the state offense (here, attempted
strangulation under Idaho Code § 18-923) to the elements listed in the Guidelines’
definition of a crime of violence. See United States v. Werle, 815 F.3d 614, 618 (9th Cir.
2016) (interpreting the term “violent felony” under the ACCA); Taylor v. United States,
495 U.S. 575, 600-02 (1990). If the elements of the state offense are the same as, or
narrower than, the Guidelines’ definition of a crime of violence, then the conduct
criminalized in the state statute is categorically a crime of violence. See Descamps v.
United States, 133 S. Ct. 2276, 2281 (2013). If, however, the state statute criminalizes
conduct broader than that criminalized in the Guidelines’ definition of a crime of
violence, then the Court proceeds to step two. See Lopez-Valencia, 798 F.3d at 867-68.
At step two, the Court determines whether the over-inclusive state statute is
divisible or indivisible. See id. A statute is divisible if it lists alternative elements such

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that the statute describes separate crimes. Descamps, 133 S. Ct. at 2285-86. If the statute
is indivisible, the analysis ends “because a conviction under an indivisible, overbroad
statute can never serve as a predicate offense.” Lopez-Valencia, 798 F.3d at 868. If the
statute is divisible, the Court proceeds to step three.
At step three, the Court examines judicially noticeable documents to determine the
elements of the statute the defendant violated. Then, the Court compares those elements
match the elements of the general definition of a crime of violence. Id.
B. Choking is a Crime of Violence
Here, Blackeagle was convicted of attempted strangulation, in violation of Idaho
Code § 18-923. This section provides:
§ 18-923. Attempted strangulation.
(1)

Any person who willfully and unlawfully chokes or attempts to
strangle a household member, or a person with whom he or she
has or had a dating relationship, is guilty of a felony punishable
by incarceration for up to fifteen (15) years in the state prison.

(2)

No injuries are required to prove attempted strangulation.

(3)

The prosecution is not required to show that the defendant
intended to kill or injure the victim. The only intent required is
the intent to choke or attempt to strangle.

Idaho Code § 18-923.
As the first sub-section of this statute explains, there are two ways of committing
the offense of “attempted strangulation”: (1) willfully and unlawfully choking, and (2)
attempting to strangle. State v. Williston, 358 P.3d 776, 780 (Idaho Ct. App. 2015).
Choking is less culpable than attempting to strangle, because attempting to strangle “by

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its very definition, involves an intent to injure or kill.” Id. at 782. Choking, however,
“requires only the general intent to willfully and unlawfully choke the victim, with no
specific intent to injure or commit a crime.” Id. at 781. Thus, “choking an individual
generally would entail an intent to at least make the person temporarily uncomfortable or
fearful, but it could be done without an intent to inflict a physical injury.” Id.
Based on these authorities, Blackeagle contends that choking does not require a
defendant to use the type of violent physical force that would satisfy the “force” clause in
§ 4B1.2(a)(1). More specifically, Blackeagle argues that because choking can be
committed without intending to cause physical injury, and without actually causing
physical injury, this necessarily means the crime of “choking” does not involve the “use,
attempted use, or threatened use of physical force against the person of another,”
U.S.S.G. § 4B1.2(a)(1), as required by the Guidelines’ definition of a “crime of
violence.” Blackeagle relies on the Supreme Court’s elaboration on the term “physical
force” in Johnson v. United States, 559 U.S. 133, 140 (2010) (Johnson I). In Johnson I,
the Supreme Court rejected the government’s argument that if a prior conviction involved
even the merest touching, the defendant had used the sort of physical force necessary to
satisfy the “force clause” of the ACCA. The Supreme Court explained that while mere
touching would not qualify as physical force, a slap in the face would suffice:
Specifying that “physical force” must rise to the level of bodily
injury [in a different statutory section] does not suggest that without
the qualification “physical force” would consist of the merest touch.
It might consist, for example, of only that degree of force necessary
to inflict pain – a slap in the face, for example.

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Id. at 143.
This language guides us here. Surely, if a slap in the face qualifies as violent
physical force capable of producing injury, then choking a person qualifies as well. To
be convicted of “choking” under Idaho Code § 18-923 the defendant must “compress the
throat [of another] with strong external pressure” so as “to make normal breathing
difficult or impossible . . . .” State v. Laramore, 179 P.3d 1084, 1088 (Ct. App. Idaho
2007) (quoting Webster’s Third New International Dictionary at 396). Thus,
notwithstanding any lack of intent to injure the victim, or the failure to actually injure the
victim, the force that must be used to be convicted of choking fits the definition of
employing “violent force – that is, force capable of causing physical pain or injury to
another person.” Johnson v. United States, 159 U.S. 133, 140 (2010) (emphasis added).
To recap, then, because choking under Idaho Code § 18-923 is properly
categorized as a “crime of violence” under the Guidelines, Blackeagle was correctly
designated as a career offender, and his Total Offense Level was correctly calculated as a
21. There is, therefore, no error, and no need to re-sentence. The Court will therefore
dismiss Blackeagle’s § 2255 motion.
ORDER
IT IS ORDERED that:
1.

The Government’s Motion to Stay (Dkt. 3) is DENIED.

2.

The Government’s Motion to Dismiss (Dkt. 5) is GRANTED and

Defendant’s Motion to Vacate under 28 U.S.C. § 2255 (Dkt. 1) is DISMISSED.

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3.

Defendant’s Motion for Leave to File Excess Pages (Dkt. 8) is retroactively

GRANTED.
4.

The Court does not find its resolution of this habeas matter to be reasonably

debatable, and a certificate of appealability will not issue. If Petitioner wishes to appeal,
he must file a timely notice of appeal with the Clerk of Court. Petitioner may seek a
certificate of appealability from the Ninth Circuit by filing a request in that court.
DATED: February 1, 2017

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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