Malohi v. USA
Filing
16
MEMORANDUM DECISION and ORDER granting 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Dee Benson on 6/4/2018. (blh)
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
HALA MALOHI,
Petitioner,
MEMORANDUM DECISION AND
ORDER
v.
UNITED STATES OF AMERICA,
Respondent.
Civil Case No. 2:16-CV-565-DB
Criminal Case No. 2:04-CR-755-DB
Judge Dee Benson
Before the Court is Petitioner’s motion to vacate and correct his sentence pursuant to 28
U.S.C. § 2255. Petitioner argues that pursuant to the United States Supreme Court’s decision in
Johnson v. United States, 135 S.Ct. 2551 (2015), he should not have received a sentencing
enhancement under the Armed Career Criminal Act (ACCA). He contends that his prior Utah
state felony convictions for robbery should not be considered violent felonies under the ACCA
post-Johnson. The motion has been fully briefed and based on the parties’ written arguments, the
relevant facts and the law, the Court enters the following Memorandum Decision and Order.
BACKGROUND
On September 20, 2005, petitioner pled guilty to the crime of felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). The presentence report (PSR) relied on
petitioner’s three prior felony convictions – two 1999 convictions for robbery and one 1999
conviction for aggravated robbery, all under Utah statutes – in determining that he qualified for a
seven point sentencing enhancement as an armed career criminal under the ACCA. The
appropriate guideline range was determined to be 180 to 210 months. At sentencing on
December 7, 2005, petitioner was sentenced to 180 months in custody, followed by five years of
supervised release.
DISCUSSION
At the time petitioner was sentenced, pre-Johnson, Utah robbery and aggravated robbery
were considered violent felonies under the ACCA’s residual clause. In Johnson, the Supreme
Court invalidated the ACCA’s residual clause as unconstitutionally vague. 135 S.Ct. 2551, 2563
(2015). In Welch v. United States, the Supreme Court held that “Johnson announced a ‘new’
substantive rule that has retroactive effect.” 136 S.Ct. 1257 (2016).
Petitioner argues that his two prior convictions for robbery, as defined by the Utah statute
in effect at the time he pled guilty, should not be considered violent felonies post-Johnson
because they do not require the use, attempted use, or threatened use of physical force against
another person.
Pre-Johnson, there were three ways for a prior offense to qualify as a violent felony under
the ACCA: first, under the elements clause, if a prior offense required “as an element the use,
attempted use, or threatened use of physical force against the person of another;” second, under
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the enumerated offense clause, if a prior offense matched the generic definition of burglary,
arson, or extortion; and third, under the residual clause, if a prior offense “otherwise involve[d]
conduct that present[ed] a serious risk of or potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)
Post-Johnson, there are two ways for a prior offense to qualify as a violent felony:
(1) under the elements clause; and (2) under the enumerated offense clause. Because robbery is
not an enumerated offense under 18 U.S.C. § 924(e)(2)(B), we must analyze Utah’s robbery
statute to determine whether it required as an element, the use, attempted use, or threatened use
of physical force against another.
In making this determination, courts use a categorical approach whereby they look only to
the statutory definition, i.e. the elements, of a defendant’s prior offense; not to the particular facts
underlying the offense. Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). However, the
government argues that the Court should use a modified categorical approach in making this
determination because it contends the robbery statute is divisible. See Descamps, 133 S.Ct. at
2282. In Mathis v. United States, 136 S.Ct. 2243 (2016), the Supreme Court addressed the
difference between divisible and indivisible statutes. A statute that lists alternative elements is
divisible and subject to modified categorical analysis. Id. at 2249-50. A statute that lists
different factual means of committing a single offense or element is indivisible and subject only
to the categorical approach. Id. Elements are the “constituent parts” of a crime’s definition. Id.
They are “what the jury must find beyond a reasonable doubt.” Id. Means, by contrast, are mere
“brute facts” that “need neither be found by a jury nor admitted by a defendant.” Id.
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Petitioner argues that force and fear are alternative means of committing a single element
of Utah robbery. In State v. Germonto, 868 P.2d 50 (Utah 1993), the Utah Supreme Court
interpreted Utah’s robbery statute as having five elements: (1) personal property is taken from
another person’s possession, or is in the immediate presence of such person at the time it is
taken; (2) the property is taken contrary to the will of such other person; (3) the taking is
accomplished by means of force or fear; (4) the taking is unlawful; and (5) the taking is
intentional. 868 P.2d at 56. He contends that Utah’s robbery statute defines one crime with five
elements and specifies two means of committing the third element.
The Court finds that Utah’s robbery statute at issue in this case was not divisible and
therefore not subject to a modified categorical analysis. Accordingly, the Court looks to the
elements of the statute, not the underlying facts in determining whether petitioner’s two prior
robbery convictions constitute violent felonies under the elements clause. Petitioner argues they
are not violent felonies because under the statute in effect at the time he pled guilty, robbery
could have been committed without using violent, physical force against another person.
At the time of petitioner’s convictions, Utah robbery was defined as follows:
(1) A person commits robbery if:
(a) the person unlawfully and intentionally takes or attempts to take
personal property in the possession of another from his person, or
immediate presence, against his will, by means of force or fear; or
(b) the person intentionally or knowingly uses force or fear of immediate
force against another in the course of committing a theft.
Utah Code § 76-6-301 (1999).
In order to be considered a violent felony under the elements clause of the ACCA, the
Supreme Court has explained that “physical force” means “violent force – that is, force capable
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of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S. 133,
140 (2010). Also, the force must be directed against another person; directing force against
property will not suffice. United States v. Ford, 613 F.3d 1263, 1272 (10th Cir. 2014). Finally,
the use of force must be intentional; a crime based on recklessness is not a violent felony. See
United States v. Hernandez, 568 F.3d 827, 831 (10th Cir. 2009).
Petitioner argues that under Utah’s robbery statute, use of force or fear of injury to
property would be sufficient to meet the elements of the crime. Specifically, he alleges that
robbery could be committed by means of fear, without force by putting the victim in fear,
including fear of non-physical injury. Under section (b), robbery may be committed by “force or
fear of immediate force.” Section (a) provides that robbery may be committed by “force or fear,”
but does not further define “fear.”1
The plain wording of the statute does not limit the requirement of fear to that of physical
force or bodily injury. For instance, fear of non-physical injury, such as fear of defamation or
fear of injury to property may suffice. While it may be true that fear of physical harm may be the
type of fear that is most often used to commit robbery, the plain wording of the statute does not
require fear of physical force as an element of the offense. Accordingly, the Court finds that
petitioner’s two prior convictions for robbery do not meet the requirements of the elements
clause for violent felonies under the ACCA for purposes of categorizing petitioner as an armed
1
The government argues that the Utah Court of Appeals’ ruling in State v. Irvin, 169 P.3d
798, 801 (Utah App. 2007) that a business cannot be the victim of a robbery, informs the type of
fear required under the robbery statute. While stating that only people, not businesses, are
capable of feeling fear, Irvin does not define the type of fear required under the statute.
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career criminal post-Johnson.
CONCLUSION
For the foregoing reasons, the Court GRANTS petitioner’s motion and VACATES the
sentence previously imposed. Counsel is instructed to contact the Court to schedule a time for
resentencing.
IT IS SO ORDERED.
DATED this 4th day of June, 2018.
_________________________________
Dee Benson
United States District Judge
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