Ford v. United States of America

Filing 18

MEMORANDUM OPINION AND ORDER by District Judge James A. Parker. granting 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) and resentencing will be scheduled (bap)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW MEXICO

STEVEN ANTHONY FORD,
Petitioner,

v.

No. 16 CV 1181 JAP/KBM
No. 08 CR 229 JAP

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
Petitioner Steven Anthony Ford (Petitioner) asks the Court to vacate his sentence and
resentence him without enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C §
924(e)(2)(B). See DEFENDANT FORD’S MOTION TO CORRECT SENTENCE PURSUANT
TO 28 U.S.C. § 2255 (Doc. No. 1) (Motion). The United States concedes that Petitioner is no
longer an armed career criminal and does not oppose resentencing. See UNITED STATES’
RESPONSE TO DEFENDANT’S MOTION TO CORRECT SENTENCE PURSUANT TO 28
U.S.C. § 2255/MEMORANDUM REGARDING TIMELINESS (Doc. No. 12). The Court will
grant the Motion.
Petitioner was convicted of three firearms charges in 2009: being a felon in possession of
firearms and ammunition, under 18 U.S.C. § 922(g)(1), being a fugitive in possession of firearms
and ammunition, under 18 U.S.C. § 922(g)(2), and possession of stolen firearms, under 18
U.S.C. § 922(j). United States v. Ford, 613 F.3d 1263, 1265 (10th Cir. 2010). He was sentenced
under the ACCA due to three prior convictions for violent felonies. Id. at 1265–66, 1270. The
Tenth Circuit Court of Appeals affirmed Petitioner’s convictions and sentence, but held that one
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of Petitioner’s prior felonies, the Kansas conviction for criminal discharge of a firearm at an
occupied building or vehicle, qualified as a violent felony only under the residual clause of the
ACCA. Id. at 1271–73. The Supreme Court has since held the residual clause unconstitutional.
See Johnson v. United States, 135 S. Ct. 2551, 2563 (2015). Johnson is retroactively applicable
on collateral review. Welch v. United States, 136 S. Ct. 1257, 1268 (2016). The Court therefore
concludes that Petitioner no longer qualifies for sentencing under the ACCA.
But even without the ACCA enhancement, Petitioner’s criminal history and offense
characteristics would still result in an enhanced Sentencing Guidelines range. See U.S.S.G. §§
2K2.1(a)–(b), 3A1.2(c)(1). At his original sentencing, Petitioner’s base offense level was
calculated at 24 based on two prior felony convictions for crimes of violence: a Kansas
conviction for Conspiracy to Commit Robbery under Kan. Stat. Ann. § 21-3302, and a Missouri
conviction for Robbery under Mo. Ann. Stat. § 569.020. See U.S.S.G. § 2K2.1(a);
PRESENTENCE REPORT (PSR) at 9 (Doc. No. 4-1); Mot. at 4. This base offense level was
enhanced by 14 levels, resulting in a total offense level of 38 and, in combination with
Petitioner’s criminal history category of VI under the ACCA, a Guidelines imprisonment range
of 360 months to life. See PSR at 11, 24, 34.
Petitioner does not challenge the 14-level enhancement here. See DEFENDANT
FORD’S MEMORANDUM ADDRESSING RECALCULATION OF HIS SENTENCING
GUIDELINE RANGE at 4 (Doc. No. 16) (Memorandum). The parties agree that without
application of the ACCA the appropriate criminal history category is V, but the parties do not
agree on the base offense level for resentencing. See Id.; UNITED STATES’ SUPPLEMENTAL
RESPONSE TO DEFENDANT’S MOTION TO CORRECT SENTENCE PURSUANT TO 28
U.S.C. § 2255 at 1 (Doc. No. 17) (Supplemental Response). While Petitioner argued in his

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Motion that Conspiracy to Commit Robbery is not a violent felony under the ACCA, see Mot. at
5–8, he is prepared to concede that both Robbery and Conspiracy to Commit Robbery remain
crimes of violence under the Guidelines, see Memo. at 4. This would result in a base offense
level of 24 and a Guidelines imprisonment range of 360 months to life, which is unchanged by
the removal of the ACCA enhancement even with the lower criminal history category. See
U.S.S.G. § 2K2.1(a)(2); Memo. at 4. But the United States interpreted Petitioner’s Motion to
contend that the Conspiracy to Commit Robbery charge was not a crime of violence under either
the Guidelines or the ACCA, and it agrees with that position. See Supp. Resp. at 1. The United
States therefore calculates Petitioner’s base offense level at 20 due to only one prior conviction
for a crime of violence, the Robbery, and reaches a total offense level of 34 and a new
Guidelines imprisonment range of 235–293 months. Id. at 1–2; See U.S.S.G. § 2K2.1(a)(4).
Sentencing Guideline § 2K2.1(a) incorporates the definition of “crime of violence”
found in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1(a)(2) cmt. n.1. At the time of Petitioner’s
offense, that definition included any felony 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 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) (2008) (emphasis
added). The Tenth Circuit Court of Appeals has held that this italicized part of U.S.S.G. § 4B1.2,
the residual clause, is unconstitutionally vague in light of Johnson. See United States v. Madrid,
805 F.3d 1204, 1211 (10th Cir. 2015). This Court has previously determined that Johnson is
retroactively applicable to Guidelines cases on collateral review. See Vasquez v. United States,
No. 16-CV-678 (D.N.M. Jan. 10, 2017).

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After Johnson, Petitioner’s conviction for Conspiracy to Commit Robbery remains a
“crime of violence” for Guidelines purposes only if it is an enumerated felony or if it “has as an
element the use, attempted use, or threatened use of physical force against the person of
another.” Conspiracy to Commit Robbery is not one of the offenses listed in § 4B1.2(a)(2), but
commentary to the Guidelines clarifies that a “crime of violence” includes conspiring to commit
such an offense. See U.S.S.G. § 4B1.2 cmt. n.1. The Guidelines’ commentary further specifies
that “crime of violence” also includes a list of enumerated offenses not named in § 4B1.2(a)(2)
(2008), one of which is Robbery. See U.S.S.G. § 4B1.2 cmt. n.1 (2008). Although no longer
binding on the courts, “[c]ommentary in the Guidelines Manual that interprets or explains a
guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent
with, or a plainly erroneous reading of, that guideline.” United States v. Smith, 433 F.3d 714, 716
(10th Cir. 2006) (quoting Stinson v. United States, 508 U.S. 36, 38 (1993)). The Court therefore
concludes that Petitioner’s conviction for Conspiracy to Commit Robbery is a crime of violence.
Accord United States v. Scharschell, No. 15-3890, ___ F. App’x ___, 2016 WL 6936581, *3 (8th
Cir. Nov. 28, 2016). Petitioner accordingly has at least two prior convictions for crimes of
violence, resulting in a base offense level of 24 and a Guidelines range of 360 months to life. See
U.S.S.G. § 2K2.1(a)(2).
But because one of Petitioner’s prior convictions no longer qualifies as a predicate felony
for ACCA enhancement, the statutory maximum sentence for his current convictions is ten years
for each offense. See 18 U.S.C § 924(a)(2); § 924(e)(2)(B). Although convicted on three charges,
Petitioner argues, and the United States agrees, that the maximum term of imprisonment to
which Petitioner may be resentenced is twenty years. See DEFENDANT FORD’S
MEMORANDUM ADDRESSING RECALCULATION OF HIS SENTENCING GUIDELINE

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RANGE (Doc. No. 16); UNITED STATES’ SUPPLEMENTAL RESPONSE TO
DEFENDANT’S MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
(Doc. No. 17).
Petitioner was convicted under 18 U.S.C. §§ 922(g)(1), (g)(2), and (j). Ford, 613 F.3d at
1265. But he should properly have been convicted for only one of the § 922(g) offenses, because
each count charged the same conduct under a different § 922(g) category of persons prohibited
from possessing firearms. See United States v. Johnson, 130 F.3d 1420, 1425–26 (10th Cir.
1997) (defendant convicted under two categories of § 922(g) for possessing one firearm is
entitled to have one of the convictions vacated). Unlike the defendant in Johnson, Petitioner was
charged with the possession of two different firearms. See SUPERSEDING INDICTMENT
(Doc. No. 40), United States v. Ford, No. 08-CR-229 JAP (D.N.M. Sept. 30, 2009). When
multiple weapons are seized from different locations, a separate violation of § 922(g) may be
charged based on each firearm. United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir. 1996).
But the “simultaneous possession of multiple firearms generally constitutes only one offense
unless there is evidence that the weapons were stored in different places or acquired at different
times.” Id. (internal ellipsis and quotation marks omitted). Here, the two weapons were not
charged separately, but were both included in the conduct that was identically described as the
basis for both of the offenses. See SUPERSEDING INDICTMENT (Doc. No. 40). The Court
therefore concludes that Petitioner can be sentenced for only one § 922(g) offense, so is subject
to a statutory maximum sentence of twenty years, or 240 months. Because his current sentence
of 360 months imprisonment is greater than this, see JUDGMENT (Doc. No. 133), Petitioner
will be resentenced.

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IT IS THEREFORE ORDERED that Petitioner’s MOTION TO CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 4) is GRANTED. Petitioner’s sentence will be
vacated and a resentencing hearing will be scheduled.

SENIOR UNITED STATES DISTRICT JUDGE

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