RUTLING v. UNITED STATES OF AMERICA
Filing
13
OPINION. Signed by Judge Renee Marie Bumb on 10/31/2018. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
JOSEPH RUTLING,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Civ. Action No. 16-3275(RMB)
OPINION
BUMB, United States District Judge
This matter comes before the Court on Petitioner Joseph
Rutling’s (“Petitioner”) Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal Custody.
(“Mot. to Vacate,” ECF No. 1.) On September 16, 2016, this case
was stayed pursuant to Standing Order 16-2.1 On November 1, 2016,
Petitioner filed a memorandum in support of his motion (“Petr’s
Mem.”) On January 2, 2018, the Government filed an answer in
opposition to the motion (Answer, ECF No. 11), and Petitioner filed
a reply on January 19, 2018. (Petr’s Reply, ECF No. 12.) For the
The stay expired on November 24, 2016. The standing order is
available at www.njd.uscourts.gov.
1
reasons discussed below, it is not necessary to hold an evidentiary
hearing and the motion to vacate is denied.
I.
BACKGROUND
A.
Procedural History
For purposes of this motion only, Respondent adopted the
citation
of
facts
and
procedural
background
set
forth
in
Petitioner’s Memorandum of Law. (Answer, ECF No. 11 at 1.) On
August 5, 2014, a criminal complaint was filed in this Court,
charging Petitioner with conspiracy to traffic in firearms and
unlawful possession of firearms. USA v. Rutling, 15cr111(RMB)
(D.N.J.) (Compl., ECF No. 1.) Petitioner was arrested on August
26, 2014. An information was filed, charging Petitioner with one
count of conspiracy to engage in unlicensed dealing in firearms,
in violation of 18 U.S.C. § 371, and one count of unlawful
possession of firearms, in violation of 18 U.S.C. § 922(a)(1)(A).
(Information, ECF No. 18.)
On March 6, 2015, Petitioner entered a guilty plea to both
counts of the information, in accordance with the terms of a
written plea agreement dated January 13, 2015. (Plea Agreement,
ECF No. 21.) Schedule A to the Plea Agreement, Stipulation ¶3
provides:
The applicable guideline for Count One of the
Information is U.S.S.G. § 2K2.1. The parties
agree that: (A) the offense involved a firearm
that is described in 26 § U.S.C. § 5845(a)
(the National Firearms Act) (specifically the
2
Izhmash, Model SPR 453 shotgun, bearing a
defaced serial number (determined to be
0815353256R)); and (B) the defendant committed
any part of the instant offense subsequent to
sustaining at least two felony convictions for
crimes of violence or controlled substance
offenses. Therefore, the Base Offense Level is
26, pursuant to U.S.S.G. § 2K2.1(a)(1).
USA v. Rutling, 15cr111(RMB) (D.N.J.) (Plea Agreement at 7, ECF
No. 21.) The Court discussed the stipulations and the sentencing
guidelines with Petitioner at the plea hearing. (Petr’s Mem., Ex.
B, Plea Hearing Transcript at 19-26, ECF No. 5-1.)
According to the PSR, the base offense level for Count One
was 26, pursuant to U.S.S.G. § 2K2.1. (Petr’s Mem., ECF No. 5 at
4.)
The
two
underlying
“predicate”
felony
convictions
in
Petitioner’s PSR that resulted in a base offense level of 26 were
(1) the 2014 Camden County, New Jersey Superior Court conviction
for distribution of CDS in a school zone; and (2) the 2011
Williamsburg County, South Carolina conviction for burglary (no
specified degree). As for the burglary conviction, the PSR notes,
“the circumstances for this case are not available.” (Petr’s Mem.,
ECF No. 5 at 4.)
The
indictment
filed
against
Petitioner
in
Williamsburg
County, South Carolina on January 27, 2011 charged him with second
degree burglary, specifically:
That Marcus Rutling and Joseph Rutling did in
Williamsburg County on or about April 30,
2010, enter the building of Kingstree Power
and Equipment, without consent and with the
3
intent to commit a crime therein and said
defendants entered or remained in said
building in the nighttime in violation of
Section 16-11-312(B), South Carolina Code of
Laws of South Carolina (1976) as amended.
(Petr’s Mem., Ex. E, Indictment Number 2011-GS-45-0040, ECF No. 52 at 28.) The sentence sheet in that case indicates that Petitioner
entered a guilty plea to a count of burglary in the third degree,
a violation of § 16-11-313, a “lesser-included” and “non-violent”
offense. (Petr’s Mem., Ex. F, Sentence Sheet dated March 10, 2011,
ECF No. 5-2 at 30.) Petitioner was sentenced to a 3-year prison
term. (Id.)
On November 3, 2015, Petitioner was sentenced in Criminal
Action No. 15cr111(RMB) USA v. Rutling, 15cr111(RMB) (D.N.J.)
(Judgment, ECF No. 26.) Defense counsel did not object to the
calculation of the offense level in the PSR. (Petr’s Mem., Ex. C,
ECF No. 5-2 at 2-3.) The Court adopted the findings in the PSR of
total
offense
level
30,
criminal
history
category
6,
for
a
Guidelines range of 168 to 210 months, capped at 180 months by
operation of the statute. (Id. at 12-13.) The Court sentenced
Petitioner to a prison term of 60 months on Count One and 120
months on Count Two, to be served consecutively, for a total term
of imprisonment of 180 months. (Id. at 19.)
Petitioner did not file a Notice of Appeal. However, on May
27, 2016, Petitioner filed a pro se motion to vacate, set aside,
4
or correct his sentence pursuant to 28 U.S.C. § 2255, alleging
that his counsel provided ineffective assistance by failing to
argue
that
his
South
Carolina
burglary
conviction
did
not
constitute a “crime of violence,” in accordance with the decision
in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015). (Mot.
to Vacate, ECF No. 1 at 13.) Pursuant to the Court’s stay of
Johnson cases in Standing Order 16-2, Petitioner, through counsel,
filed memorandum of law in support of his motion to vacate on
November 1, 2016. (Petr’s Mem., ECF No. 5.) In summary, Petitioner
alleged that
Mr. Rutling had only one countable conviction
for Section 2K2.1’s purposes, and his base
offense level should have been 22 pursuant to
U.S.S.G. § 2K2.1(a)(3). This would have
changed his adjusted offense level to 32
rather than 33. Thus the final offense level,
after
adjustment
for
acceptance
of
responsibility, should have been level 29
rather than 30. This would have changed the
recommended guideline range from 168-210
months to a significantly lower 151-188 months
(capped at 180 months). In other words, this
Court sentenced him to the maximum sentence
after considering an improperly calculated
sentencing range. Therefore, counsel was
ineffective for stipulating to the erroneous
base offense level in the plea agreement.
Additionally, the Probation Department should
have caught the error in compiling the
Presentence Report upon reviewing his prior
conviction records. Had it been properly
advised, the Court would have considered the
applicable range to have begun at 151 months,
not 168.
As discussed below, applicable Third Circuit
case law based upon the United States
5
Constitution requires a sentencing court to
properly calculate a defendant’s Guidelines
sentence range, at step one of the sentencing
process.
Moreover,
miscalculating
the
advisory sentencing Guidelines range is not
rendered harmless by the fact that the
sentence imposed was within an overlapping
range. Because counsel stipulated to an
incorrect base offense level in the plea
agreement, and that formed the basis for the
sentence imposed in this case, that sentence
must be vacated and this case remanded for
resentencing.
Respondent filed an answer to the motion to vacate on January
2, 2018, arguing that Petitioner had not addressed whether his
third-degree burglary conviction constituted a crime of violence
under
the
residual
clause
of
the
Sentencing
Guidelines
and
maintaining that it is a crime of violence; and in any event, the
court would have imposed the same sentence if it was not. (Answer,
ECF No. 11.) Petitioner filed a reply on January 19, 2018, arguing
that his burglary conviction was not a crime of violence under the
residual clause, and the error was prejudicial. (Petr’s Reply, ECF
No. 11.)
B.
The Parties’ Arguments
Petitioner’s base offense level was calculated under U.S.S.G.
§ 2K1.2. (Petr’s Mem., ECF No. 5 at 1.) Petitioner contends his
counsel was ineffective for stipulating at sentencing to an offense
level of 26 for Count One, based on two underlying predicate
convictions. (Id. at 2.) Petitioner asserts that he had only one
countable conviction for purposes of Section 2K2.1, and his base
6
offense level should have been 22 under U.S.S.G. § 2K2.1(a)(3).
(Petr’s Mem. at 2, ECF No. 5.) This would have changed his final
offense level to 30, and his recommended Guidelines range to 151188 months (capped at 180 months). (Id.)
Respondent
contends
Petitioner’s
third-degree
burglary
conviction was a crime of violence under the residual clause of
the 2015 Sentencing Guidelines, the version of the Guidelines in
effect when he was sentenced on November 3, 2015. (Answer, ECF No.
11
at
4.)
The
Court
notes
that
the
PSR
indicates
the
2014
Sentencing Guidelines Manual was used to calculate Petitioner’s
criminal history score, and the Court adopted the PSR without
objection at sentencing. USA v. Rutling, 15cr111(RMB) (D.N.J.)
(Sentencing Tr., ECF No. 27 at 2-3.) However, the 2014 and 2015
Sentencing Guidelines define “crime of violence” under U.S.S.G. §
4B1.2(b)
identically
extortion,
involves
as
use
“burglary
of
of
explosives,
a
dwelling,
or
arson,
otherwise
or
involves
conduct that presents a serious potential risk of physical injury
to another.”
There are three ways Petitioner’s burglary conviction could
constitute a crime of violence under § 4B1.2: (1) the elements
clause [also known as the “force clause”] under § 4B1.2(a)(1); (2)
the enumerated offenses clause of § 4B1.2(a)(2); and (3) the
residual clause of § 4B1.2(a)(2), if the underlying crime “presents
a potential risk of physical injury to another.” (Answer, ECF No.
7
11 at 5.) Respondent notes Petitioner did not address the residual
clause in his memorandum of law. (Id.)
Respondent concedes that the Supreme Court, in Johnson v.
United States, 135 S. Ct. 2551 (2015), held the residual clause of
the Armed Career Criminal Act (“ACCA”) is void for vagueness. The
residual clause of § 4B1.2(a)(2), however, is not void because the
Sentencing Guidelines are advisory only. Beckles v. United States,
137 S. Ct. 886 (2017).
Respondent maintains that Petitioner’s reliance on United
States v. Jones, 114 F. Supp. 3d 310 (D.S.C. 2015)2 is misplaced
because the Jones Court analyzed only whether a third-degree
burglary conviction meets the “crime of violence” definition under
the elements/force clause or the enumerated offenses clause of the
ACCA, it did not address the residual clause of § 4B1.2(a)(2).
(Id. at 7.)
A
prior
4B1.2(a)(2)
conviction
if
the
satisfies
underlying
the
crime
residual
clause
“present[s]
a
of
§
serious
potential risk of physical injury” and is roughly similar, in kind
as well as degree of risk posed, to the examples [of burglary,
Jones is distinguishable because it does not address the analysis
of whether a conviction constitutes a “crime of violence” under
the residual clause of § 4B1.2(a)(2), but rather discusses the
analysis under the enumerated clause of 18 U.S.C. § 924(e)(2)(B).
114 F. Supp. 3d at 317 (noting the Johnson decision rendered the
ACCA residual clause unconstitutionally void for vagueness but the
Government alternatively argued that Jones’ third-degree burglary
convictions were crimes of violence under the enumerated clause.)
2
8
arson, extortion, or use of explosives] themselves.” (Answer, ECF
No. 5 at 7, quoting United States v. Marrero, 743 F.3d 389, 39495 (3d Cir. 2014) (citations and quotation marks omitted, brackets
in original)). Respondent notes that courts employ the categorical
approach to make this determination and consider only “the fact of
conviction and the statutory definition of the prior offense.”
(Id., quoting Shepard v. United States, 544 U.S. 13, 17 (2005)
(internal quotations omitted)). Courts do not inquire into the
specific conduct of the particular offender. (Id., citing James v.
United States, 550 U.S. 192, 202 (2007)). Thus, “the proper inquiry
is whether the conduct encompassed by the elements of the offense,
in the ordinary case, presents a serious potential risk of injury
to another.” (Answer, ECF No. 5 at 7, quoting James, 550 U.S. at
202.)
Petitioner pled guilty to violation of South Carolina Code §
16-11-313, which provides:
(A) A person is guilty of burglary in the third
degree if the person enters a building without
consent and with intent to commit a crime
therein.
(B) Burglary in the third degree is a felony
punishable by imprisonment for not more than
five years for conviction on a first offense
and for not more than ten years for conviction
of a second offense according to the
discretion of the Court.
Respondent contends that, on its face, the statute under which
Petitioner was convicted of burglary presents the same general
9
type and level of risk as the generic burglary statute; therefore,
Petitioner’s conviction qualifies as a crime of violence under the
residual clause of § 4B1.2(a)(2). Respondent relied on the Supreme
Court’s decision in James, which found
[t]he main risk of burglary arises not from
the simple physical act of wrongfully entering
onto another’s property, but rather from the
possibility of a face-to-face confrontation
between the burglar and a third party –
whether an occupant, a police officer, or a
bystander – who comes to investigate. That is,
the risk arises … from the possibility that an
innocent person might appear while the crime
is in progress.
(Answer, ECF No. 11 at 8, quoting James, 550 U.S. at 203.) The
risk presented, Respondent claims, is the same risk presented in
the ordinary case, that a burglar might encounter someone like a
night watchman or a patrolling policeman who seeks to protect the
building or him/herself from harm. (Answer at 8, ECF No. 11.)
Respondent notes that every conceivable set of facts covered
by the statute does not have to present a serious potential risk
of injury for the statute to qualify as a crime of violence under
the residual clause of the Sentencing Guidelines. (Answer at 9,
citing James, 550 U.S. at 207-08.) Rather, the inquiry is focused
on the “ordinary case.” (Id.)
Even if Petitioner was correct that counsel should have
stipulated to a base offense level of 22 on Count One, resulting
in a Guideline sentencing range of 151 to 188-month term of
10
imprisonment, Respondent contends there was no prejudice because
the Court would have imposed the same 180-month sentence under a
lower Guidelines range. (Answer at 10-11, ECF No. 11.) The Court
stated:
… the defendant has asked me to consider, and
I have, that I should consider the fact that
if I look at some of these criminal
convictions that the 14 points present a far
more sinister criminal history than actually
exists. And I looked at that and I studied
that. And four points, the defendant argues
four
points
are
from
municipal
court
convictions and if those weren’t counted, then
he would be at a – that the defendant would be
at a Criminal History Category 10, which is a
Criminal History Category 5, facing 151 to 188
months.
I have considered that argument. I think at
the end of my analysis, the sentence I’m about
to impose does address all of the 3553(a)
factors. And even if the defense had moved for
a downward departure and I had granted it down
to a level 5, where the Criminal History
Category would be if I discounted those
municipal court convictions, I would vary to
the sentence I’m about to impose because I do
believe that the sentence I’m about to impose
does address the [3553(a)] factors.
(Answer at 11-12, ECF No. 11, citing Sentencing Tr. at 17-18, ECF
No. 5-2.)
In reply, Petitioner raises a new issue, that all parties
overlooked conflicting statements concerning Petitioner’s prior
convictions. (Petr’s Reply at 1, ECF No. 12.) Paragraph Three
(applicable to Count One) of the plea agreement shows Petitioner’s
base offense level was 26 under U.S.S.G. § 2K2.1(a)(1), based on
11
two
qualifying
predicate
convictions.
(Id.)
Paragraph
Nine
(applicable to Count Two) shows that his base offense level was 22
under
U.S.S.G.
§
2K2.1(a)(3),
based
on
a
single
qualifying
predicate conviction. (Id.) Petitioner asks for this mistake to be
corrected. (Id.)
Next, regarding Respondent’s contention that his burglary
conviction was a crime of violence under the residual clause of
the 2015 [or 2014] version of U.S.S.G. § 4B1.2(a), Petitioner
asserts there is a split among the Circuits that have addressed
the issue. (Petr’s Reply at 2.) The Sixth Circuit held that a
conviction under South Carolina’s second-degree burglary statute
does not qualify as a crime of violence under the residual clause
“because it does not present the same degree of risk as generic
burglary of a dwelling.” (Petr’s Reply at 2, ECF No. 12, quoting
United States v. McFalls, 592 F.3d 707, 714 (6th Cir. 2010),
abrogated on other grounds by United States v. Verwiege, 872 F.3d
408 (6th Cir.) amended, 874 F.3d 258 (6th Cir. 2017)).
Petitioner further contends that the Sixth Circuit recognizes
that its approach is at odds with other Circuits. (Id. at 2-3,
citing United States v. Prater, 766 F.3d 501, 516-17 (6th Cir.
2014) (citing cases)). Petitioner notes the Sixth Circuit in United
States v. Prater criticizes other Circuits (including the Third
Circuit decision in United States v. Harford, 370 F. App’x 322,
324 (3d Cir. 2010)) for treating non-generic burglaries similarly
12
to
generic
consideration
burglaries
of
whether
without
the
adequate
non-generic
explanation
crimes
“present[]
or
a
serious potential risk of physical injury” comparable to generic
burglaries. (Id.)
Petitioner argues this Court should not follow the Third
Circuit decision in Harford because it contains no legal analysis
and merely relies on United States v. Andrello, 518 F.3d 164 (2d
Cir. 1993) (per curiam), and is likely no longer good law after
Descamps v. United States, 570 U.S. 254 (2013). (Id.)
Petitioner cites Third Circuit decisions holding that ACCA
precedent
“generally
applies
also
to
‘crimes
of
violence’
enhancements under the Guidelines.” (Petr’s Reply at 3-4, ECF No.
12, citing United States v. Steiner, 847 F.3d 103, 119 n. 62 (3d
Cir. 2017), citing United States v. Brown, 765 F.3d 185, 189 n.2
(3d Cir. 2014)). The Third Circuit in Steiner held that because
the Pennsylvania burglary statute at issue swept more broadly than
burglary narrowed to dwellings, it was not a predicate Section
4B1.2 “crime of violence.” (Petr’s Reply at 5, quoting Steiner,
847 F.3d at 120.)3 Petitioner concludes that this Court never had
The Court notes that Steiner is distinguishable from this case
because the Steiner Court addressed only whether the Pennsylvania
burglary statute constituted a crime of violence under the
enumerated clause of the Sentencing Guidelines, and did not address
the residual clause. See Steiner, 847 F.3d at 120 n. 83 (noting
the court had held the residual clause of § 4B1.2 was
unconstitutionally vague but if the Supreme Court upheld the
residual clause in Beckles, the District Court should not consider
3
13
the opportunity to determine whether his prior conviction was
divisible or non-divisible or otherwise address whether a prior
conviction was a crime of violence. (Petr’s Reply at 5, ECF No.
12.)
Petitioner also addresses Respondent’s claim that he cannot
show prejudice because the Court would have imposed the same 180month
sentence
if
the
range
had
been
151-188
months.
(Id.)
Precedent mandates that a sentencing court must properly calculate
the advisory Guidelines range. (Id. at 6-7, citing United States
v. Boney, 769 F.3d 153, 159 (3d Cir. 2014)). Petitioner disagrees
with Respondent that the advisory sentence range had no impact on
the Court’s consideration of the appropriate sentence. (Id. at 78.)
II.
DISCUSSION
A. Legal Standard
A prisoner in federal custody may move to vacate, set aside,
or correct his sentence on the ground that the sentence was imposed
in violation of the Constitution. 28 U.S.C. § 2255(a). Courts
should liberally construe a pro se § 2255 petition. U.S. v.
Delgado, 363 F. App’x 853, 855 (3d Cir. 2010).
28 U.S.C. § 2255(b) provides, in relevant part, “unless the
motion and the files and records of the case conclusively show
the residual clause on remand because the Government had not argued
it should apply.)
14
that the prisoner is entitled to no relief, the court shall … grant
a prompt hearing thereon …;” see United States v. Tolliver, 800
F.3d 138, 141 (3d Cir. 2015) (“the district court abuses its
discretion if it fails to hold an evidentiary hearing when the
files and records of the case are inconclusive as to whether the
movant is entitled to relief”) (quoting United States v. Booth,
432 F.3d 542, 546 (3d Cir. 2005)).
Petitioner asserts his counsel was ineffective by stipulating
to a base offense level of 26 on Count One, based on two predicate
crimes of violence, because his third-degree burglary conviction
was not a crime of violence. The Sixth Amendment right to counsel
is the right to effective assistance of counsel. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). A court must analyze an
ineffective assistance of counsel claim in a § 2255 motion under
the two-prong test established in Strickland v. Washington, 466
U.S. 668 (1984). Massaro v. U.S., 538 U.S. 500, 505 (2003).
Under
Strickland,
a
defendant
must
demonstrate
that
(1)
counsel’s performance was deficient; and (2) counsel’s deficient
performance prejudiced the defense. 466 U.S. at 687. In order to
establish
deficient
performance,
a
defendant
must
show
that
counsel “made errors so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”
Id. “Judicial scrutiny of counsel’s performance must be highly
deferential … a court must indulge a strong presumption that
15
counsel’s
conduct
falls
within
the
wide
range
of
reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” 466 U.S. at 688-89
(internal quotations omitted). Accordingly, counsel’s “strategic
choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable.” Id. at 690691.
To establish prejudice, a defendant must show that there is
a “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable
probably
is
a
probability
sufficient
to
undermine
confidence in the outcome.” Strickland, 466 U.S. at 694.
B.
Analysis
1.
Whether There Are Conflicting Statements in the
Plea Agreement Concerning Petitioner’s Prior
Convictions
First, the Court addresses Petitioner’s claim in his reply
that all parties overlooked conflicting statements concerning
Petitioner’s prior convictions. (Petr’s Reply at 1.) Petitioner
notes that Paragraph Three of the plea agreement shows Petitioner’s
base offense level was 26 under U.S.S.G. § 2K2.1(a)(1), based on
two qualifying predicate convictions. (Id.) Paragraph Nine, on the
other hand, shows that his base offense level was 22 under U.S.S.G.
§
2K2.1(a)(3),
based
on
only
a
16
single
qualifying
predicate
conviction. (Petr’s Reply
at 1, ECF No. 12.) Petitioner asks for
this mistake to be corrected. (Id.)
For the reasons discussed below, there was no mistake in the
plea
agreement.
The
difference
in
the
number
of
qualifying
predicate convictions are explained by the dates when the crimes
set forth in Counts One and Two of the Indictment were committed.
Section 2K2.1 in the 2014 and 2015 U.S.S.G. Sentencing Guidelines
Manual provides, in relevant part:
§2K2.1. Unlawful Receipt, Possession, or
Transportation of Firearms or Ammunition;
Prohibited Transactions Involving Firearms or
Ammunition
(a) Base Offense Level (Apply the Greatest):
(1) 26, if (A) the offense involved a (i)
semiautomatic firearm that is capable of
accepting a large capacity magazine; or
(ii) firearm that is described in 26
U.S.C. § 5845(a); and (B) the defendant
committed any part of the instant offense
subsequent to sustaining at least two
felony convictions of either a crime of
violence or a controlled substance
offense;
(2) 24, if the defendant committed any
part of the instant offense subsequent to
sustaining
at
least
two
felony
convictions of either a crime of violence
or a controlled substance offense;
(3) 22, if (A) the offense involved a (i)
semiautomatic firearm that is capable of
accepting a large capacity magazine; or
(ii) firearm that is described in 26
U.S.C. § 5845(a); and (B) the defendant
committed any part of the instant offense
subsequent to sustaining one felony
17
conviction of either a crime of violence
or a controlled substance offense[.]
According to the plea agreement, the conspiracy alleged in
Count One lasted from April 8, 2013 through July 28, 2014. (Plea
Agreement at 1, ECF No. 21.) For Count Two, the parties agreed
that the offense of felon-in-possession was committed on April 9,
2014.
The Sentencing Transcript indicates that Petitioner committed
two
crimes
of
violence
subsequent
to
the
beginning
of
the
conspiracy on April 8, 2013, and he committed one crime of violence
subsequent to his possession of a firearm on April 9, 2014. AUSA
Smith explained,
[t]he conspiracy that Mr. Rutling pled guilty
to went from April of 2013 to the end of July
of 2014 and, your Honor, during that time, on
April 27, 2013 and April 11, 2014, separated
by almost a year, Mr. Rutling was arrested and
convicted of two crimes. The first was for
distributing drugs, 29 ziplock bags of
powdered cocaine and 40 ziplock bags of a
white rock-like substance after fleeing from
police. And then about a year later, towards
the end of the conspiracy, theft by unlawful
taking.
(Sentencing Tr. at 9:13–9:21, ECF No. 5-2.)
There was no mistake in the plea agreement. Count One was
properly
calculated
under
§
2K2.1(a)(1)
because
Petitioner
committed two crimes of violence subsequent to when the conspiracy
began, and Count Two was properly calculated under § 2K2.1(a)(3)
18
because he committed one crime of violence subsequent to his April
9, 2014 felon-in-possession offense.
2.
Whether
Petitioner’s
Burglary
Conviction
Constitutes a Predicate “Crime of Violence” under
the residual clause of U.S.S.G. § 4B1.2(a)(2)
(2014).
In Johnson, the Supreme Court held that the residual clause
of the ACCA,4 with language identical to the residual clause of §
4B1.2(a)(2), was void for vagueness. 135 S. Ct. at 2563. That,
however, does not end the analysis in this case. In Beckles, the
petitioner
argued
to
the
Supreme
Court
that
the
Guidelines’
residual clause, like the ACCA, was also void for vagueness. 137
S.
Ct.
886,
890
(2017).
The
Court
held
that
“the
advisory
Guidelines are not subject to vagueness challenges under the Due
Process Clause.” Id.
The Court distinguished the due process analysis for the ACCA
from the advisory Guidelines because the advisory Guidelines “do
not fix the permissible range of sentences … but merely guide the
exercise
of
a
court’s
discretion
in
choosing
an
appropriate
sentence within the statutory range.” 137 S. Ct. at 892. In
contrast, the Court noted the ACCA required sentencing courts to
The ACCA defines violent felony as “any crime punishable by
imprisonment for a term exceeding one year … that─ . . . “otherwise
involves conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii).
4
19
increase a defendant’s prison term from a statutory maximum of 10
years to a minimum of 15 years. Id.
The Court explained, “[t]he advisory Guidelines also do not
implicate
the
twin
concerns
underlying
vagueness
doctrine─providing notice and preventing arbitrary enforcement.”
Id. at 894. Providing notice is not implicated because “even if a
person behaves so as to avoid an enhanced sentence under the
career−offender
guidelines,
the
sentencing
court
retains
discretion to impose the enhanced sentence.” Id. “All of the notice
required is provided by the applicable statutory range, which
establishes
the
permissible
bounds
of
the
court’s
sentencing
discretion.” Beckles, 137 S. Ct. at 894.
The Court reasoned that the advisory Guidelines also do not
create concern with arbitrary enforcement, as a vague statute like
the ACCA does. Id. The Court explained, “[an] unconstitutionally
vague law invites arbitrary enforcement … if it leaves judges and
jurors free to decide, without any legally fixed standards, what
is prohibited and what is not in each particular case … or permits
them to prescribe the sentences or sentencing range available.”
Id. at 894-95 (internal quotations and citations omitted).
The Court distinguished the Guidelines from laws because they
do not regulate the public by prohibiting any
conduct or by establishing minimum and maximum
penalties for [any] crime. … Rather, the
Guidelines advise sentencing courts how to
20
exercise their discretion within the bounds
established by Congress.
Beckles, 137 S. Ct. at 894-95 (internal quotations omitted). Thus,
in Beckles, where the petitioner was convicted under 18 U.S.C. §
922(g)(1) for possession of a firearm by a felon, and § 924(e)(1)
fixed the permissible range of petitioner’s sentence to 15-years
to
life
provided
imprisonment,
the
the
sentencing
career
court
offender
with
Guideline
“advice
in
merely
exercising
discretion to choose a sentence within those statutory limits.”
Id. at 895.
Because the Supreme Court upheld the residual clause of
U.S.S.G. § 4B1.2(a)(2) in Beckles, it appears that courts must
continue to determine whether a predicate crime is a crime of
violence under Supreme Court precedent criticized in Johnson. See
Steiner, 847 F.3d at 118 (ACCA precedent generally applies to
crimes of violence under the Guidelines.)5
Descamps, 570 U.S. 254 (2013) and Mathis v. United States, 136
S. Ct. 2243 (2016) are distinguishable because they discuss the
analysis under the enumerated clauses of the ACCA and the
Sentencing Guidelines, not the residual clauses. See Descamps, 570
U.S. at 257 (to determine whether a past conviction is “burglary,
arson, or extortion” as enumerated in 18 U.S.C. § 924(e), courts
use the “categorical approach” to “compare the elements of the
statute forming the basis of the defendant’s conviction with the
elements of the ‘generic’ crime−i.e., the offense as commonly
understood. The prior conviction qualifies as an ACCA predicate
only if the statute’s elements are the same as, or narrower than,
those of the generic offense”); Mathis v. United States, 136 S.
Ct. at 2257 (“[c]ourts must ask whether the crime of conviction is
the same as, or narrower than, the relevant generic offense”).
Even assuming Descamps and Mathis support a finding that
5
21
Sykes v. United States, 564 U.S. 1 (2011), is the Supreme
Court’s penultimate ACCA residual clause case. Sessions v. Dimaya,
138 S. Ct. 1204, 1239 (2018) (Roberts J., dissenting). In Sykes,
the issue was whether an Indiana statute that made it a criminal
offense whenever the driver of a vehicle knowingly or intentionally
“flees from a law enforcement officer” was a violent felony under
the ACCA. Id. at 4.
The first step in the analysis was to
employ the categorical approach .... Under
this approach, we look only to the fact of
conviction and the statutory definition of the
prior offense, and do not generally consider
the particular facts disclosed by the record
of conviction. That is, we consider whether
the elements of the offense are of the type
that would justify its inclusion within the
residual provision, without inquiring into the
specific conduct of this particular offender.”
James [v. United States], 550 U.S., [192], 202
[127 S.Ct. 1586] [2007] (internal quotation
marks and citations omitted); see also Taylor
v. United States, 495 U.S. 575, 599–602, 110
S.Ct. 2143, 109 L.Ed.2d 607 (1990).
Id. at 7. “‘Elements’ are the ‘constituent parts’ of a crime's
legal definition—the things the ‘prosecution must prove to sustain
a conviction.’” Mathis v. United States, 136 S. Ct. 2243, 2248,
Petitioner’s third-degree burglary conviction was not a crime of
violence under the enumerated clause of the Guidelines, the thirddegree burglary conviction may still constitute a crime of violence
under the residual clause. See e.g. U.S. v. Terrell, 593 F.3d 1084,
1092 (9th Cir. 2010) (“we hold that although [the petitioner’s]
prior burglary offenses do not fit within the enumerated offenses,
they do fit within the residual clause.”)
22
195 L. Ed. 2d 604 (2016) (quoting Black's Law Dictionary 634 (10th
ed. 2014)). Where a burglary law lays out alternative places, such
as “‘any building, structure, [or] land, water, or air vehicle’”
where
a
burglary
can
occur,
the
listed
locations
are
not
alternative elements, “they lay out alternative ways of satisfying
a single locational element[.]” Id. at 2250.
The question in Sykes was whether the statute at issue fell
within the residual clause “because, as a categorical matter, it
presents a serious potential risk of physical injury to another.”
Sykes, at 564 U.S. at 8.
Courts look to the enumerated offenses
for guidance by asking whether
“the risk posed by [the crime in
question] is comparable to that posed by its closest analog among
the enumerated offenses.” Id. (quoting James, 550 U.S., at 203,
127 S.Ct. 1586 (explaining that attempted burglary poses risks
akin to that of completed burglary)). The Dimaya Court noted that
burglary is dangerous because it can end in confrontation leading
to violence. Id. at 9.
Here, Petitioner pled guilty to burglary in the third-degree
under S.C. Code § 16-11-313, which provides:
(A) A person is guilty of burglary in the third
degree if the person enters a building without
consent and with intent to commit a crime
therein.
(B) Burglary in the third degree is a felony
punishable by imprisonment for not more than
five years for conviction on a first offense
and for not more than ten years for conviction
23
of a second offense
discretion of the Court.
according
to
the
Terms used in this provision are defined in S.C. Code § 16-11-310:
(1) “Building” means any structure, vehicle,
watercraft, or aircraft:
(a) Where any person lodges or lives; or
(b) Where people assemble for purposes of
business,
government,
education,
religion,
entertainment,
public
transportation, or public use or where
goods are stored. Where a building
consists of two or more units separately
occupied or secured, each unit is deemed
both a separate building in itself and a
part of the main building.
. . .
(3) “Enters a building without consent” means:
(a) To enter a building without the consent of
the person in lawful possession; or
(b) To enter a building by using deception,
artifice, trick, or misrepresentation to gain
consent to enter from the person in lawful
possession.
The elements of the crime are (1) entering a building; (2)
without consent; (3) with intent to commit a crime. “The only
[intent] requirement is that the person has the intent to commit
any crime at the time of entry.” James L. v. State, 2008 WL 9841673,
at *3 (Ohio Ct. App. May 16, 2008 (quoting Pinckney v. State, 629
S.E.2d 367, 369 (2006)). Further, “it is not necessary the intended
crime be committed or the person be convicted of the intended
crime.” Id. (quoting State v. Peterson, 518 S.E.2d 277, 278 (Ohio
24
Ct. App. 1999)). Consistent with Mathis’ definition of elements,
the definition of “building” in the South Carolina statute does
not describe elements of the burglary offense but alternative means
of fulfilling the element of “entering a building.”
The next step in the analysis is to look to the statutory
language to determine whether the risk posed by violation of the
statute “is comparable to that posed by its closest analog among
the enumerated offenses,” which in this case is generic burglary.
James, 550 U.S. at 203. The main risk of generic burglary arises
from “the possibility of a face-to-face confrontation between the
burglar and a third-party─whether an occupant, a police officer,
or a bystander─who comes to investigate.” Id.
“[T]he proper inquiry is whether the conduct encompassed by
the elements of the offense, in the ordinary case, presents a
serious risk of injury to another.” Id. at 208. Here, the South
Carolina third-degree burglary statute poses the same kind of risk
because confrontation between a burglar and one who lawfully enters
a building with intent to commit a crime may turn into a violent
confrontation and result in injury to a person.
3.
Whether this Court’s sentencing decision should be
upheld pursuant to Beckles.
Even if third-degree burglary under South Carolina Code § 1611-313 is not a crime of violence under the residual clause of
U.S.S.G. § 4B1.2(a)(2) (2014), the Court’s sentence within the
25
Advisory Guidelines range for the crime of conviction should be
upheld pursuant to Beckles.6 Beckles instructs that the career
offender
Guideline
merely
provides
the
sentencing
court
with
“advice in exercising discretion to choose a sentence within [the]
statutory limits.” Id. at 895. This Court considered defendant’s
argument that four points of his criminal history score should be
discounted because they were based on municipal convictions, and
he should be sentenced in the range of 151 to 180-months. The
Sentencing Transcript reflects
the defendant has asked [the Court] to
consider, and I have, that I should consider
the fact that if I look at some of these
criminal convictions that the 14 points
present a far more sinister criminal history
than actually exists. And I looked at that and
I studied that. And four points, the defendant
argues four points are from municipal court
convictions and if those weren't counted, then
he would be at a -- that the defendant would
be at a Criminal History Category 10, which is
a Criminal History Category 5, facing 151 to
188 months.
I have considered that argument. I think at
the end of my analysis, the sentence I'm about
to impose does address all of the 3553(a)
factors. And even if the defense had moved for
a downward departure and I had granted it down
to a level 5, where the Criminal History
Category would be if I discounted those
municipal court convictions, I would vary up
to the sentence I'm about to impose because I
Beckles quoted the 2006 edition of the Sentencing Guidelines.
See Beckles, at 890 n. 1. The 2014 Guidelines Manual was used in
Petitioner’s PSR and at his sentencing, and the residual clause
contains the same language as the 2006 edition quoted in Beckles.
6
26
do believe that the sentence I'm about to
impose does address the 3553(a) factors.
I have reviewed the presentence report. I
think the defendant's role in this crime is
chilling. I look at Paragraph 80, where the
defendant is talking about his criminal
conduct, Paragraph 86, and the callousness by
which the defendant discusses his criminal
conduct. Paragraph 47 he talks about the sale
of a firearm he obtained when he was 12 years
old. Rutling explained that he sold a firearm
when he was 18 years old due to the fact that
the firearm was used in numerous shootings,
homicides, and the only reason I ended up
getting rid of that was because it had too
many bodies on it. It just had to go, it was
too much. And as I said, I recognize that
perhaps this is him puffing, perhaps, but it
says much to the Court about the type of person
that stands before me; callous, certainly not
law abiding, and who just has not learned from
the criminal justice system that he must turn
his life around.
And so, for all of those reasons, I think that
the sentence I will impose will be a guideline
sentence and will address adequately the 3553
factors.
Here, Petitioner entered a guilty plea to Count I of the
Information, conspiracy to deal in firearms without a license
contrary to 18 U.S.C. Section 922(a)(1)(A) in violation of 18
U.S.C. § 371; and Count 2 of the Information, felon in possession
of a firearm in violation of 18 U.S.C. Section 922(g)(1). United
States v. Rutling, 15cr111(RMB) (D.N.J.) (Plea Colloquy, ECF No.
28 at 16.) Count 1 carried a maximum prison term of five years,
and Count 2 carried a maximum prison term of ten years, a total of
15-years [or 180 months]. United States v. Rutling, 15cr111(RMB)
27
(D.N.J.) (Plea Colloquy, ECF No. 28 at 16-17.) The Court imposed
a 180-month sentence, explaining that even if the Guidelines range
was 151-188 (capped at 180), the § 3553(a) factors otherwise
warranted a 180-month sentence.
4.
Any
Assuming, in the Alternative, that Petitioner’s
South Carolina Burglary Conviction Was Not a Crime
of Violence, Whether there is Strickland Prejudice
potential
Petitioner’s
error
third-degree
of
counsel
burglary
in
stipulating
conviction
was
a
that
crime
of
violence under U.S.S.G. § 2K2.1(a)(1), as defined under U.S.S.G.
§ 4B1.2(a)(2), did not prejudice Petitioner. See United States v.
Dahl, 713 F. App’x 62, 67 (3d Cir. 2017) (“The categorical approach
at step 1 notwithstanding, the District Court did not err in
considering at step 3 the facts of Dahl’s criminal history and
granting the government’s motion to vary back within the recidivist
range
based
on
those
facts
and
the
other
§
3553(a)
considerations”); see also Molina-Martinez v. United States, 136
S. Ct. 1338, 1345, 1347 (2016) (when a defendant is sentenced under
an incorrect Guidelines range “the error can, and must often will,
be sufficient to a show a reasonable probability of a different
outcome absent the error” but … “[t]he Government remains free to
poin[t] to parts of the record─including relevant statements by
the judge─to counter any ostensible showing of prejudice the
defendant may make” (quoting United States v. Vonn, 535, U.S. 55,
68 (2002)).
28
Even if Petitioner established that his third-degree burglary
conviction was not a crime of violence, and the Guidelines range
was reduced to 151-180 months, the Court would impose a term of
imprisonment of 180 months for the same reasons it gave under the
§ 3553(a) factors to support a 180-month sentence if the municipal
convictions were not taken into account. Petitioner has not shown
that
his
counsel
provided
ineffective
assistance
pursuant
to
Strickland v. Washington. Cf. U.S. v. Otero, 502 F.3d 331, 337 (3d
Cir.
2007)
(increased
sentence
based
on
erroneous
16-level
enhancement in calculating Guidelines range constituted Strickland
prejudice).
III. CERTIFICATE OF APPEALABILITY
Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken from a final order in a
proceeding
under
28
U.S.C.
§
2254.
28
U.S.C.
§
2253(c).
A
certificate of appealability may issue “only if the applicant has
made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this
standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims
or that jurists could conclude the issues presented are adequate
to
deserve
encouragement
to
proceed
Cockrell, 537 U.S. 322, 327 (2003).
29
further.”
Miller-El
v.
For the reasons discussed above, even if jurists of reason
might
disagree
on
whether
Petitioner’s
third-degree
burglary
conviction constituted a crime of violence under the residual
clause of U.S.S.G. § 4B1.2(a)(2) (2015), jurists of reason would
not disagree that defense counsel’s failure to make this argument
did not prejudice Petitioner because the Court would have imposed
the same 180-month sentence. Therefore, the Court will deny a
certificate of appealability.
IV. CONCLUSION
For the foregoing reasons, the motion to vacate, set aside,
or correct the sentence (ECF No. 1) is DENIED, and the Court SHALL
NOT ISSUE a certificate of appealability.
An appropriate Order shall follow.
Dated: October 31, 2018
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
30
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