Grant v. USA
Filing
10
ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Denzell D Grant: For the reasons explained in the attached Order, the Court finds enforceable Petitioner Grant's waiver of the right to file a collateral attack and DISMISSES his 2255 petition. The Court also declines to issue a certificate of appealability. See Order for details. Signed by Chief Judge Michael J. Reagan on 1/11/17. (soh)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DENZELL D. GRANT,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
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Case No. 16-cv-0677-MJR
(Related Case 14-CR-30039-MJR)
ORDER DENYING JOHNSON-BASED PETITION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. 2255
REAGAN, Chief Judge:
A.
Introduction
In his underlying criminal case (Case No. 14-cr-30039-MJR), Denzell Grant pled
guilty to interference with commerce by robbery in violation of 18 U.S.C. 1951(a)
(Count 1, sometimes referred to as “Hobbs Act robbery”) and discharge of a firearm in
furtherance of a crime of violence in violation of 18 U.S.C. 924(c)(1)(A)(iii) (Count 2).
The undersigned sentenced Grant to 180 total months in prison (150 months on Count 2
running consecutively to 30 months on Count 1), plus three years of supervised release.
Judgment was entered on October 24, 2014.
On June 21, 2016, Grant filed a pro se petition to vacate, set aside, or correct his
sentence under 28 U.S.C. 2255 petition, along with a 40-page supporting memorandum.
The petition was based on the United States Supreme Court’s 2015 decision in Johnson
v. United States, -- U.S. --, 135 S. Ct. 2551 (2015). Johnson declared unconstitutional a
portion of a federal statute -- the residual clause of the Armed Career Criminal Act
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(“ACCA”), 18 U.S.C. 924(e)(2)(B)(ii). The Supreme Court held that the residual clause
of ACCA violates the United States Constitution’s guarantee of due process by being so
vaguely worded as to not give ordinary people fair notice of the conduct it punishes.
Grant claims that this ruling supports his request for relief under 28 U.S.C. 2255.
On threshold review of Grant’s petition, the undersigned set a briefing schedule
and appointed counsel to assist Grant in pursuing any relief he may be entitled to under
Johnson. In that Order, the Court noted several potential obstacles to § 2255 relief, if the
petition was timely. First, Grant was not sentenced under the residual clause of the
ACCA that was struck down in Johnson -- 18 U.S.C. 924(e)(2)(B)(ii). Instead, he was
sentenced for violation of 18 U.S.C. 1951(a) (on Count 1, Hobbs Act robbery) and 18
U.S.C. 924(c)(1)(A)(iii) (on Count 2, discharging a firearm in furtherance of a crime of
violence). So (especially at the time of this Court’s threshold review Order), the
application of Johnson beyond ACCA-based sentences was unclear.
Second, in a
written plea agreement, Grant had waived the right to challenge his sentence under 28
U.S.C. 2255, with two exceptions that did not appear to apply.
On August 29, 2016, Grant’s counsel (Assistant Federal Public Defender Daniel
Cronin) filed a detailed memorandum addressing the concerns raised by the Court and
explaining his reasons for concluding that “there is no non-frivolous basis for the relief
sought in Petitioner’s pro se § 2255 petition” (Doc. 5, p. 1). Cronin argues that Grant’s
petition was timely filed. As to Grant’s waiver of the right to collateral review, Cronin
offers a potential basis on which to sidestep the waiver which Grant executed, but he
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essentially concedes that the plain language of the waiver “seems to preclude
consideration of Mr. Grant’s § 2255 claims on the merits” (Doc. 5, p. 5).
If Grant’s petition is not barred by the § 2255 waiver, and assuming that Johnson
extends to the residual clause Grant cites to (18 U.S.C. 924(c)(3)(B)), another impediment
to relief exists. 18 U.S.C. 924(c)(3) defines the term “crime of violence” to mean a felony
offense that either (A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or (B) 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. 18 U.S.C. 924(c)(3). Cronin asserts that
Grant’s Hobbs Act robbery may no longer qualify as a crime of violence under the
residual-like clause of § 924(c)(3)(B) (as Grant argues), but that offense would still
qualify as a crime of violence under the elements or “force” clause of § 924(c)(3)(A). For
all these reasons, Mr. Cronin was compelled to opine that there is no solid basis on
which this Court can award the relief sought in Grant’s § 22255 petition.
The United States (the Government) responded on October 7, 2016 (see Doc. 8).
Grant filed two replies (see Docs. 7 and 9). The issues have been thoroughly discussed,
and the matter was fully ripe as of November 9, 2016. For the reasons stated below, the
Court dismisses Grant’s petition.
B.
Preliminary Issues
Under Rule 8(a) of the Rules Governing Section 2255 Proceedings, this Court
must determine whether an evidentiary hearing is warranted.
Not every petition
warrants a hearing. Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016). See also
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Martin v. United States, 789 F.3d 703, 706 (7th Cir. 2015) (“It is well-established that a
district court need not grant an evidentiary hearing in all § 2255 cases,” such as where
the record conclusively shows the prisoner is not entitled to relief.); Kafo v. United
States, 467 F.3d 1063, 1067 (7th Cir. 2006) (to justify a hearing, petition must be
accompanied by a detailed affidavit which shows that the petitioner has actual proof
of the allegations going beyond mere unsupported assertions). The record before this
Court conclusively reveals that Grant is not entitled to relief, so no hearing is needed.
Next, the Court addresses whether Grant’s petition was timely filed. It was. The
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) imposes a one-year
period of limitations for prisoners to file petitions seeking to modify or vacate their
sentences under 28 U.S.C. 2255. 28 U.S.C. 2255(f); Purvis v. United States, 662 F.3d 939,
942 (7th Cir. 2011). Accord Clay v. United States, 537 U.S. 522, 524 (2003) (“A motion by
a federal prisoner … under 28 U.S.C. § 2255 is subject to a one-year time limitation
that generally runs from ‘the date on which the judgment of conviction becomes
final.’“).
The one-year limitation period is triggered by the latest of four events:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a motion by
such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
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(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
28 U.S.C. 2255(f). The statute does not provide for extensions of time. 1
Grant filed his petition on June 21, 2016 -- within the one-year period set forth in
§ 2255(f)(3), based on the Supreme Court’s June 26, 2015 decision in Johnson, which has
been declared retroactively applicable to cases on collateral review. Welch v. United
States, -- U.S. --, 136 S. Ct. 1257, 1265 (2016) (“Johnson is … a substantive decision and
so has retroactive effect … in cases on collateral review.”); Price v. United States, 795
F.3d 731, 734 (7th Cir. 2015) (Johnson announced a new substantive rule which applies
retroactively on collateral review). The Court treats the petition as timely-filed.
C.
Analysis
(1)
OVERVIEW
Analysis starts with the proposition that relief under § 2255 is limited. It is
“available only in extraordinary situations,” requiring an error of constitutional or
jurisdictional magnitude or a fundamental defect that resulted in a complete
miscarriage of justice. Blake v. United States, 723 F.3d 870, 879 (7th Cir. 2013). Accord
United States v. Coleman, 763 F.3d 706, 708 (7th Cir. 2014).
Grant vehemently asserts that there has been an error of constitutional
proportion here. He insists that, after Johnson, his Hobbs Act robbery conviction no
The limitation period is not jurisdictional and can be equitably tolled.
Boulb v. United States, 818 F.3d 334, 339 (7th Cir. 2016), citing Holland v. Florida,
560 U.S. 631, 645 (2010). But equitable tolling is “reserved for extraordinary
circumstances far beyond the litigant’s control” which prevented him from filing
the petition on time. Id., quoting Socha v. Boughton, 763 F.3d 674, 684 (7th Cir.
2014). Accord Nolan v. United States, 358 F.3d 480, 484 (7th Cir. 2004).
1
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longer qualifies as a crime of violence, so his “§ 924(c) conviction cannot stand” (Doc. 7,
p. 5), and the Court must enter a “judgment of acquittal” on that count (Doc. 9, p. 4).
The essence of Grant’s argument is that the residual clause of 18 U.S.C. 924(c)(3)(B) is
materially the same as the residual clause of ACCA struck down in Johnson, so the
residual clause of 924(c)(3)(B) is unconstitutionally vague, and his conviction and
sentence under the latter are invalid.
(2)
WAIVER OF RIGHT TO FILE 2255 PETITION
Before reaching the merits of this argument, the Court must confront an obvious
procedural impediment – Grant waived the right to collaterally challenge his sentence
pursuant to 28 U.S.C. 2255. 2 In July 2014, Grant executed a written plea agreement in
which he acknowledged that he had rights to contest his sentence under Title 18 and
Title 28, as well as certain appeal rights. The plea agreement then stated (Doc. 8-2; bold
in original, italics added here):
The Government agrees to recommend a sentence of not more than five
(5) years imprisonment on Count 1 of the Indictment. Based on this
concession, the Defendant agrees to waive his appeal and collateral
review rights….
However, in exchange for the recommendations and concessions made by
the United States in this plea agreement, the Defendant knowingly and
voluntarily waives his right to contest any aspect of his conviction and
sentence that could be contested under … Title 28, or under any other
provision of federal law, except that if the sentence imposed is in excess
of sixty (60) months’ on Count 1, the Defendant reserves the right to
appeal the reasonableness of the sentence….
The plea agreement and stipulation of facts from the criminal case are
exhibits in this civil proceeding, at Docs. 8-2 and 8-3.
2
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Defendant’s waiver of his right to … bring collateral challenges shall not
apply to: 1) any subsequent change in the interpretation of the law by the
United States Supreme Court or the United States Court of Appeals for the
Seventh Circuit that is declared retroactive by those Courts and that renders
the defendant actually innocent of the charges covered herein; and 2) appeals
based upon Sentencing Guideline amendments that are made retroactive
by the United States Sentencing Commission (see U.S.S.G. § 1B1.10).
Cronin offers one possible basis on which to circumvent the waiver – an implicit
due process-based exception to the waiver (see Doc. 5, pp. 5-6). Petitioner Grant adopts
this argument (Doc. 9, pp. 1-2). The Court finds it unavailing. The Court concludes that
the waiver, which was knowingly and voluntarily executed (Grant does not claim
otherwise, nor would the record support such a claim), dooms Grant’s § 2255 petition.
Clearly, a defendant can waive his right to collateral review as part of a plea
agreement. See, e.g., Solano v. United States, 812 F.3d 573, 577 (7th Cir. 2016) (“As part
of a plea agreement, a defendant may validly waive his right to challenge his
conviction and sentence on direct appeal or collateral review under 28 U.S.C. 2255.”).
Such waivers are enforced unless the plea agreement was involuntary, the court relied
on a constitutionally impermissible factor (like the defendant’s race), the sentence
exceeded the statutory maximum, or the defendant claimed ineffective assistance of
counsel in connection with negotiation of the plea agreement. Keller v. United States,
657 F.3d 675, 681 (7th Cir. 2011), citing Jones v. United States, 167 F.3d 1142, 1144-45 (7th
Cir. 1999); Gaylord v. United States, 829 F.3d 500, 505 (7th Cir. 2016). None of these
exceptions applies here.
Grant’s plea agreement explicitly left one door to collateral review open. The
agreement says the waiver of the right to bring a collateral challenge does not apply to
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any subsequent change in the law by the United States Supreme Court or the United
States Court of Appeals for the Seventh Circuit that was declared retroactive by those
Courts and that rendered Grant actually innocent of the charges.
Any reliance on this provision would be misplaced, because Johnson did not
render Grant actually innocent of the charges he pled guilty to – Hobbs Act robbery and
discharge of a firearm in furtherance of a crime of violence. Nothing about the holding
of Johnson altered the elements of or heightened the proof required for conviction
under these statutes. 3 The undersigned finds the § 2255 waiver enforceable. That
waiver precludes the relief Grant seeks. If the Court could bypass the waiver, Grant’s
petition would fail on the merits.
(3)
MERITS OF 2255 PETITION
The Government maintains that Grant’s convictions are for crimes not impacted
by Johnson, as Johnson involved ACCA, and Grant was not sentenced under ACCA.
Post-Johnson caselaw in this Circuit reveals weakness in this argument, as sentencing
provisions other than ACCA’s residual clause have been found void based on the
rationale of Johnson. So the Court (again assuming, arguendo, that the waiver provision
did not bar this collateral challenge) addresses Grant’s argument head-on.
18 U.S.C. 924(c)(1)(A) provides in part that any person who “during and in
relation to any crime of violence … uses or carries a firearm …, shall, in addition to the
Johnson stands in contrast to Flores-Figueroa v. United States, 556 U.S.
646, 657 (2009), which changed the proof required for conviction under the
aggravated identity theft statute. In Flores-Figueroa, an element of the offense of
conviction was changed by the Supreme Court’s opinion, resulting in the
defendant being actually innocent of the charge. Johnson did not render Grant
innocent of the charges he pled guilty to in this Court.
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punishment provide for such crime of violence” be sentenced to a term of
imprisonment of not less than five years. The sentence jumps to not less than ten years
if the firearm is discharged. 18 U.S.C. 924(c)(1)(A)(iii). 4 The merits-based question is
whether Grant’s Hobbs Act robbery conviction is still a “crime of violence” postJohnson.
There are two ways a felony offense qualifies as a “crime of violence” under 18
U.S.C. 924(c)(3) -- the offense (A) has as an element the use, attempted use, or
threatened use of physical force against the person or property of another, or (B) 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. 18 U.S.C. 924(c)(3).
Provision (A) is referred to as the “force” or “elements” clause; provision (B) has been
called the residual clause.
Grant points out that Johnson sweeps farther than the Government’s crabbed
interpretation, and he argues that the residual clause of § 924(c)(3)(B) is every bit as
vague as the ACCA residual clause declared unconstitutional in Johnson. Indeed, the
Seventh Circuit has expanded Johnson to strike down residual clauses in laws other
than ACCA.
See, e.g., United States v. Vivas-Ceja, 808 F.3d 719, 721 (7th Cir. 2015)
(finding residual clause of 18 U.S.C. 16(b) invalid for the same reason ACCA’s
Grant was convicted of Hobbs Act robbery under 18 U.S.C. 1951(a)
(Count 1) and discharge of a firearm in furtherance of a crime of violence under
18 U.S.C. 924(c)(1)(A)(iii) (Count 2). The presentence investigation report (PSR,
Doc. 27 in the underlying criminal case) explained as to Count 2 that U.S.S.G.
2K2.4 directs that if a defendant (whether or not convicted of another crime) is
convicted under § 924(c), the term of imprisonment is that required by statute
(here, since the firearm was charged in relation to Count 1, the penalty is not less
than 10 years, running consecutively to Count 1).
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residual clause was invalidated) 5; and United States v. Hurlburt, 835 F.3d 715 (7th Cir.
2016) (finding residual clause in § 4B1.2(a)(1) of the U.S. Sentencing Guidelines
unconstitutionally vague). 6
Moreover, just eight weeks ago, the Seventh Circuit
addressed the validity of the residual clause of § 924(c)(3).
In United States v. Cardena, 842 F.3d 959, 996 (7th Cir. Nov. 18, 2016), the
Seventh Circuit held that the residual clause of 18 U.S.C. 924(c)(3)(B) is “virtually
indistinguishable from the clause in Johnson that was found to be unconstitutionally
vague” and is likewise unconstitutionally vague.
So Grant’s Hobbs Act robbery
conviction does not count as a crime of violence under § 924(c)(3)(B). The problem for
Grant is that his Hobbs Act robbery conviction still constitutes a crime of violence under
§ 924(c)(3)(A) -- the elements or force clause of 924(c)(3).
That clause, untouched by Johnson and its progeny, provides that a felony
offense is a “crime of violence” if it “has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.” To date, the
United States Supreme Court and Seventh Circuit have not squarely decided whether a
Hobbs Act robbery is a crime of violence under the force clause of § 924(c)(3)(A).
However, over a dozen district courts and at least two federal courts of appeal have
The United States Supreme Court has granted review in a case presenting
the question whether Johnson extends to the residual clause in 18 U.S.C. § 16(b).
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, -- U.S. --, 137 S. Ct.
31 (Sept, 29, 2016). See United States v. Armour, 840 F.3d 904, 912 (7th Cir. 2016).
5
It bears note that, to date, this holding (the extension of Johnson to the
U.S.S.G. 4B1.2(a)(2)) has not been declared to apply retroactively to cases on
collateral review. The Supreme Court is expected to decide that question in
Beckles v. United States, 616 F. App’x 415 (11th Cir. 2015), cert. granted, -- U.S. --,
136 S. Ct. 2510 (June 27, 2016).
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tackled the issue, all answering the question affirmatively, and the Seventh Circuit has
hinted as much (see footnote 7, below).
The district court cases are summarized in the Northern District of Indiana’s
decision in United States v. Crawford, -- Fed. Supp. 3d --, 2016 WL 320116, at *3 (N.D.
Ind. 2016), which also concludes that Hobbs Act robbery is a crime of violence under 18
U.S.C. 924(c)(3)(A). Furthermore, in United States v. Hill, 832 F.3d 135 (2nd Cir. 2016),
the Court of Appeals for the Second Circuit held that Hobbs Act robbery is a crime of
violence under the force clause of § 924(c)(3).
Section 924(c)(3)(A) defines a crime of violence as a felony offense that “has as an
element the use, attempted use, or threatened use of physical force against the person or
property of another.” Grant was convicted of was Hobbs Act robbery, a violation of 18
U.S.C. 1951. Section 1951(b)(1) 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 threatened force, or violence, or fear of injury, immediate or future,
to his person or property….”
In Hill, the defendant argued that Hobbs Act robbery was not a crime of violence
under 18 U.S.C. 924(c)(3), because it was possible to commit Hobbs Act robbery without
satisfying § 924(c)’s force clause – i.e., by merely putting the victim in fear of injury as
opposed to actually using (or threatening to use) force or violence. The Second Circuit
soundly rejected this argument:
In Castleman, the Supreme Court, construing “physical force” as it is
employed in connection with § 922(g)(9), made clear that physical force
“encompasses even its indirect application,” as when a battery is
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committed by administering a poison: “That the harm occurs indirectly,
rather than directly (as with a kick or punch), does not matter” lest we
conclude that pulling the trigger on a gun involves no use of force
“because it is the bullet, not the trigger, that actually strikes the victim.”
134 S. Ct. at 1414–15. Hill offers no persuasive reason why the same
principle should not apply to the construction of § 924(c)(3), so that, as
regarding the Hobbs Act, a robbery still has as an element “the use,
attempted use, or threatened use of physical force against the person or
property of another,” notwithstanding that it is accomplished by
threatening to poison a victim, rather than to shoot him. Some threats do
not require specification of any particular means in order to be effective;
yet they still threaten some type of violence and the application of some
force. Consider: “That's a nice car—would you like to be able to continue
driving it?”
….
In sum, we agree with the Ninth Circuit, … that Hobbs Act robbery “has
as an element the use, attempted use, or threatened use of physical force
against the person or property of another.” 18 U.S.C. § 924(c)(3)(A).
Hill, 832 F.3d at 143-44, citing United States v. Castleman, -- U.S. --, 134 S. Ct. 1405,
1417 (2014)(Scalia J., concurring), and United States v. Howard, 650 F. App’x 466, 468
(9th Cir. 2016) (holding that Hobbs Act robbery qualifies as a crime of violence under
§ 924(c)’s force clause).
7
The Second Circuit reached this conclusion after applying an
analytical framework known as “the categorical approach.” A bit of background on this
approach is helpful to understand why the undersigned does not apply it here.
To determine whether a conviction qualifies as a crime of violence for sentencing
purposes, federal courts usually apply the categorical approach, under which they ask
only whether the elements of the offense forming the basis of the prior conviction
sufficiently match the elements of the generic or commonly understood version of that
Additionally, the Seventh Circuit (when denying applications for leave to
file a second or successive § 2255 petition) has suggested that Hobbs Act robbery
counts as a crime of violence under § 924(c)(3)(A)’s force or elements clause. See,
e.g., Rimpson v. United States, No. 16-2304 at 1-2 (7th Cir. June 28, 2016); Scott
v. United States, No. 16-1630 at 1-2 (7th Cir. April 8, 2016).
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crime. See Taylor v. United States, 495 U.S. 575, 599-600 (1990).
In this process, the
court examines the legal elements of the crime, not the specific conduct of a particular
defendant on a certain day. Begay v. United States, 553 U.S. 137 (2008).
The court compares two things – the judgment and the statute of conviction – to
determine whether the elements of the prior offense are the kind that make the offense a
violent crime. See United States v. Ker Yang, 799 F.3d 750, 752 (7th Cir. 2015), citing
United States v. Woods, 576 F.3d 400, 403 (7th Cir. 2009). Accord Descamps v. United
States, -- U.S. --, 133 S. Ct. 2276 (2013). See also Mathis v. United States, -- U.S. --, 136
S. Ct. 2243 (2016). As long as the elements of the prior crime are the same as or
narrower than the generic offense, the prior crime counts as a predicate for sentencing
purposes. See, e.g., Taylor, 495 U.S. at 599 (if the state statute is narrower than the
generic view, “there is no problem, because the conviction necessarily implies that
the defendant has been found guilty of all the elements of” the generic offense).
The inquiry is simple if the statute defines a crime with one indivisible set of
elements. “The court then lines up that crime’s elements alongside those of the generic
offense and sees if they match.” Mathis, 136 S. Ct. at 2248. The task is more difficult
when the statute lists the elements in the alternative and thereby defines multiple
crimes. Id. at 2249.
In that situation, confronted with a “divisible” statute, the court
may follow the modified categorical approach and consult a limited class of documents
(e.g., indictment, jury instructions, plea agreement and colloquy) “to determine what
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crime, with what elements, a defendant was convicted of,” and compare that crime with
the relevant generic offense. Id., citing Shepard v. United States, 544 U.S. 13, 26 (2005). 8
The task is even harder if the statute lists alternative means of satisfying one of its
elements. That was the type of statute under review in Mathis. In that case, the
defendant received a 15-year sentence enhancement in federal court based on his prior
convictions under Iowa’s burglary statute. The generic offense of burglary has the
following elements: unlawful entry into a building or other structure with the intent to
commit a crime. The Iowa burglary statute covered not just buildings or structures but
also vehicles, meaning there was more than one way to fulfill a single element of the
Iowa burglary law. The Supreme Court found that the Iowa statute set out disjunctive
means or “factual scenarios” of committing the crime of burglary, not alternative
elements of conviction.
This meant the Iowa law was not divisible. Reliance on a
conviction under this kind of statute is problematic, because a jury need not necessarily
make specific findings at trial to obtain a conviction for (or a defendant make specific
admissions in pleading guilty to) such a crime. Mathis, 136 S. Ct. at 2249.
Since the Iowa statute was not divisible, the sentencing judge was not allowed to
inspect records of the prior convictions and determine whether the defendant had
burgled structures (which would match generic burglary) as opposed to vehicles (which
A state law forbidding the lawful entry or unlawful entry of a premise
with intent to steal would create two different offenses, one more serious than
the other. A defendant’s conviction under that law would “match” generic
burglary and qualify as an ACCA predicate if he was convicted of unlawful entry
but not lawful entry, so the court could look at the Shepard documents to see what
the defendant was actually convicted of – which elements were integral to his
conviction – and whether those matched generic burglary. Mathis, 136 S. Ct. at
2249.
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would not match generic burglary).
The sentencing judge had to stick with the
categorical approach and ask whether the elements of Iowa burglary were the same as
(or narrower than) those of the generic offense of burglary.
They were not.
The
elements of Iowa’s burglary statute were broader than the elements of the generic
offense of burglary, so a prior conviction for burglary in Iowa could not be counted as
an ACCA violent felony predicate. Id., 136 S. Ct. at 2251.
Mathis involved sentence enhancement under ACCA.
In September 2016, the
Seventh Circuit applied Mathis in the context of sentence enhancement under the
Guidelines. In United States v. Edwards, 836 F.3d 831 (7th Cir. 2016), the Seventh
Circuit scrutinized whether a Wisconsin burglary statute was divisible such that the
sentencing judge could consult the state court charging documents to decide whether a
prior conviction was a crime of violence under the Guidelines. The Court ultimately
found that the Wisconsin law was not divisible. It identified two different means of
committing a single crime (burglary) as opposed to listing alternative elements that
create multiple, distinct offenses.
The Court explained (id. at 834-35, emphasis added):
The concept of divisibility is an outgrowth of the categorical approach that
governs the crime-of-violence determination under the Sentencing
Guidelines…. The categorical approach disregards the facts underlying a
prior conviction, focusing instead on the statutory definition of the
offense….
If the statutory definition is the same as (or narrower than) the
Guidelines definition, the prior conviction can be counted as a crime of
violence…. [i]f a statute defines an offense more broadly than the
Guidelines, the prior conviction doesn’t count…. Consequently, in most
cases the sentencing judge’s inquiry is limited to “the fact of conviction
and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602….
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We say ‘most cases’ because the categorical approach “may permit the
sentencing court to go beyond the mere fact of conviction in a narrow
range of cases…. This occurs when a statute is “divisible”….
Until recently, the circuits were split regarding what qualifies as
a divisible statute…. The Supreme Court resolved the split in Mathis,
holding that a statute is divisible only if it creates multiple offenses by
listing one or more alternative elements…. A statute that defines a single
offense with alternative means of satisfying a particular element is
indivisible and therefore not subject to the modified categorical approach.
In Edwards, the Seventh Circuit emphasized that “recourse to state-court
charging documents was improper,” because the statute was not divisible, it only set
forth alternative means of satisfying one element (the location element) of the state
burglary offense.
Id, 836 F.3d at 833. Sticking with the categorical approach, the
Seventh Circuit found that the elements of the crime of conviction were broader than
“the elements of the Guidelines offense so the defendants’ burglary convictions cannot
serve as predicate offenses under § 2K2.1(a).” Id. at 6.
Turning back to the case sub judice, the conviction of Grant’s under scrutiny is his
conviction for Hobbs Act robbery. The Hobbs Act is violated when a person “in any
way or degree obstructs, delays, or affects commerce … by robbery or extortion … or
commits or threatens physical violence to any person or property in furtherance of a
plan or purpose to do anything in violation of this section.” 18 U.S.C. 1951(a). The
statute goes on to define 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
threatened force, or violence, or fear of injury, immediate or future, to his
person or property, or property in his custody or possession, or the person
or property of a relative or member of his family or of anyone in his
company at the time of the taking or obtaining.
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18 U.S.C. 1951(b)(1).
Since the Hobbs Act can be violated two separate ways – robbery or extortion
(both of which obstruct commerce but are different offenses) – arguably it is a divisible
statute. Counsel did not brief (and the undersigned need not delve into application of)
the categorical or modified categorical approach here, because there is a key distinction
between the statutes underlying Grant’s convictions and the statutes at play in the cases
involving these approaches.
ACCA and similar provisions are sentencing enhancement statutes, so a reviewing
court on a § 2255 petition assesses whether the defendant’s prior convictions (often
felonies under state law) are crimes of violence that support sentence enhancement.
The Seventh Circuit recently stressed that whereas ACCA is a sentence-enhancement
statute based on prior convictions for violent felonies, Ҥ 924(c) is not. It defines a
stand-alone crime” – a particular crime of violence (or drug trafficking crime)
committed with a firearm. Davila v. United States, -- F.3d --, 2016 WL 7217582, at *1
(7th Cir. Dec. 13, 2016).
The district court need not apply an analytical approach to
determine if the defendant was convicted of a “crime of violence” where the conviction
at issue is the offense the defendant was convicted of in that federal court (i.e., the
offense of conviction itself) as opposed to a prior conviction under a state statute. 9
In Davila, the Seventh Circuit pointed out: “When stating the factual
basis of his plea, Davila admitted to a substantive … offense that made him
eligible for conviction under § 924(c), no matter how the Hobbs Act conspiracy is
best classified….” Id., at *1.
9
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In a case with facts parallel to those at bar (and in which the defendant sought to
set aside his conviction on the ground that his Hobbs Act robbery conviction no longer
was a crime of violence as required for conviction under § 924(c)), Chief Judge Simon of
the Northern District of Indiana explained:
unlike § 924(e), which is a sentencing-enhancement statute based on prior
convictions for violent felonies, a § 924(c) charge is a ‘stand-alone crime’
that itself alleges the particular crime of violence … committed with a
firearm….
Mr. James admitted at his plea hearing that he stormed the gas station
armed with a gun and brandished it while robbing the place…. Mr. James
plainly committed a violent crime that involved the use of actual and
threatened force, as well as fear of injury, when he robbed the gas station.
… The facts … established by stipulation clearly meet the elements prong
of § 924(c)(3)(A), because the Hobbs Act robbery that was actually
committed by Mr. James involved the unlawful taking of personal
property by means of actual and threatened force, violence and fear of
immediate personal injury…. [T]he crime of violence is an element of the
§ 924(c) charge of which James was convicted, [and] the proof of the
elements of that underlying crime was before me at Mr. James’ plea
hearing and sentencing….
United States v. James, -- Fed. Supp. 3d --, 2016 WL 7475657, at *2 (N.D. Ind. Dec. 29,
2016), citing Davila, 2016 WL 7217582, at *1-2.
Similarly, Denzell Grant was convicted of Hobbs Act robbery (in violation of 18
U.S.C 1951(a)) and discharge of a firearm in furtherance of a crime of violence (in
violation of 18 U.S.C. 924(c)(1)(A)(iii)). When Grant entered his guilty plea, he admitted
to attempting to commit a robbery as defined in 18 U.S.C. 1951 at Max’s One Stop,
specifically by attempting to unlawfully take and obtain personal property consisting of
United States currency from the person of another “by means of actual and threatened
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force, violence and fear of immediate injury to the person of R.B.” Doc. 8-3, p. 2.10
Without question, Grant’s Hobbs Act robbery had as an element the use, attempted use,
or threatened use of physical force against the person or property of another and thus
met the definition of a crime of violence under the force clause of § 924(c)(3)(A) -- a
clause which remains on sound footing in the wake of Johnson, Cardena, and other
cases striking down residual clauses. 11 See In re Fleur, 824 F.3d 1337, 1340-41 (11th Cir.
2016) (defendant pled guilty to using, carrying, and discharging a firearm during a
Hobbs Act robbery, “which robbery offense meets the use-of-force clause of the
definition of crime of violence under § 924(c)(3)(A)”). Therefore, if the Court could
reach the merits of Grant’s petition, the undersigned would deny the requested relief.
D.
Conclusion
In United States v. Worthen, 842 F.3d 552, 554 (7th Cir. 2016), the Seventh Circuit
enforced an appeal waiver in a plea agreement and refused to reach the question of
whether the defendant’s Hobbs Act robbery conviction was a crime of violence under
18 U.S.C. 924(j). The Court reiterated its “longstanding precedent that appeal waivers
are generally enforceable,” discussed the substantial benefits criminal defendants
receive in exchange for such waivers, and held that the defendant had expressly waived
Grant further admitted knowingly possessing and brandishing a Taurus
.380 caliber pistol which discharged (in a struggle over the weapon between
Grant and a store clerk) during the commission of the offense, in furtherance of a
crime of violence for which he may be prosecuted (i.e., the Hobbs Act robbery).
Doc. 8-3, pp. 2-3. He also admitted that the discharge of the weapon injured
R.B.’s left hand and struck Grant in the right arm. Doc. 8-3, p. 1.
10
Grant’s appointed counsel reached the same conclusion, candidly
positing (Doc. 5, p. 10) that any claim that a Hobbs Act robbery is not a ‘crime of
violence’ under § 924(c)(3)(A) is “a forlorn hope.”
11
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his right to appeal his conviction and sentence, and that waiver precluded an appeal.
Id. at 555-56. Likewise here, the undersigned concludes that Grant’s waiver of the right
to pursue a collateral challenge forecloses this collateral attack via § 2255 petition.
Grant does not contend that his guilty plea, his stipulation, or his execution of
the waiver was involuntary.
He does not identify any defect in his Rule 11 plea
colloquy. He does not challenge the jurisdiction of this Court to sentence him, and his
sentence did not exceed a relevant statutory maximum.
Grant’s plea (including the waiver provision) was knowing and voluntary. The
Government made significant concessions in exchange, including agreeing to
recommend no more than a five-year sentence on Count 1 (despite the fact that Grant
robbed a convenience store with a loaded firearm that he held to the head of the clerk
while demanding money, a firearm that discharged during a struggle for the weapon
between Grant and the clerk).
The Court enforces the § 2255 waiver Grant executed. That waiver bars Grant’s
§ 2255 petition. The petition is hereby DISMISSED. If the waiver somehow could be
overlooked such that the Court could reach the merits of the petition, the undersigned
would find that Hobbs Act robbery still qualifies as a crime of violence under the force
clause of 18 U.S.C. 924(c)(3)(A).
E.
Certificate of Appealability
Rule 11(a) of the Rules Governing Section 2255 Proceedings requires a district
court entering a final order adverse to a petitioner to issue or deny a certificate of
appealability. 28 U.S.C. 2253(c)(2) states that a certificate of appealability may issue
Page | 20
“only if the applicant has made a substantial showing of the denial of a constitutional
right.” This standard requires the petitioner to demonstrate that reasonable jurists
could debate whether the petition should have been resolved in a different manner or
that the “issues presented were ‘adequate to deserve encouragement to proceed
further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000). See also United States v. Fleming, 676 F.3d 621, 625 (7th Cir. 2012).
For the reasons explained above, the Court finds Grant’s § 2255 waiver fully
enforceable. And if that waiver were disregarded, the undersigned would find Grant
not entitled to § 2255 relief, because his Hobbs Act robbery conviction qualifies as a
“crime of violence” under the force or elements clause of 18 U.S.C. § 924(c)(3)(A).
Reasonable jurists would not find these conclusions debatable. Because Grant has failed
to make a substantial showing of the denial of a constitutional right, the Court
DECLINES to issue a certificate of appealability. The Clerk of Court shall send a copy
of this Order directly to Petitioner Grant.
IT IS SO ORDERED.
DATED January 11, 2017.
s/ Michael J. Reagan
Michael J. Reagan
United States District Judge
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