Vehikite v. USA
MEMORANDUM DECISION AND ORDER granting 1 Petitioner's Motion to Vacate, Set Aside or Correct Sentence (2255); and denying 4 Motion to Stay. Signed by Judge Ted Stewart on 10/13/2016. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER GRANTING PETITIONER’S
MOTION TO CORRECT SENTENCE
UNDER 28 U.S.C. § 2255
UNITED STATES OF AMERICA,
Civil Case No. 2:16-CV-669 TS
Criminal Case No. 2:12-CR-533 TS
District Judge Ted Stewart
This matter is before the Court on Petitioner Veaniua Vehikite’ Motion to Correct
Sentence Under 28 U.S.C. § 2255. For the reasons discussed below, the Court will grant the
On October 5, 2012, Petitioner was charged with various counts, including possession
with intent to distribute methamphetamine and being a felon in possession of a firearm.
Petitioner pleaded guilty on July 16, 2013.
The Presentence Report identified one of Petitioner’s prior convictions as a crime of
violence under United States Sentencing Guideline (“USSG”) § 4B1.2, a 2005 Utah conviction
for failing to stop at the command of a police officer. This resulted in a base offense level of 20
instead of 14. With a total offense level of 21 and a criminal history category of VI, Petitioner
had a guideline range of 77 to 96 months. The Court imposed a sentence of 65 months.
Petitioner did not file a direct appeal.
Petitioner filed the instant Motion on June 22, 2016. Petitioner argues that his sentence is
unconstitutional in light of Johnson v. United States. 1 In particular, Petitioner contends that his
prior conviction for failure to stop can no longer be considered a crime of violence.
The Supreme Court in Johnson considered the validity of the Armed Career Criminal Act
(“ACCA”). The ACCA, 18 U.S.C. § 924(e), provides for increased penalties for a person who
violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious
drug offense. The Act defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year, or any act
of juvenile delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such term if
committed by an adult, that—
(i) has as an element the use, attempted use, or threatened use of physical force
against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise
involves conduct that presents a serious potential risk of physical injury to another
. . . .2
The first part of the definition—“has as an element the use, attempted use, or threatened
use of physical force against the person of another”—is known as the force clause. The second
portion—“burglary, arson, extortion, or crimes involving the use of explosives”—is the
enumerated offenses provision. The last clause—“crimes that otherwise involve conduct that
presents a serious potential risk of physical injury to another”—is called the residual clause. In
Johnson, the Supreme Court held that the residual clause was unconstitutionally vague. 3 The
135 S. Ct. 2551 (2015).
18 U.S.C. § 924(e)(2)(B).
Johnson, 135 S. Ct. at 2563.
Supreme Court in Welch v. United States, 4 held that Johnson’s constitutional holding applied
retroactively to cases on collateral review.
The Sentencing Guidelines provide for several sentencing enhancements for crimes
constituting “crimes of violence.” Relevant here, USSG § 2K2.1 calculates a defendant’s base
offense level depending on how many prior convictions the defendant sustained for “either a
crime of violence or a controlled substance offense.” “Crime of violence” is, in turn, defined by
§ 4B1.2. Section 4B1.2(a) defines a “crime of violence” as:
[A]ny offense under federal or state law, punishable by imprisonment for a term
exceeding one year, that –
(1) has as an element the use, attempted use, or threatened use of physical force
against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of physical injury
to another. 5
The Tenth Circuit has held that the “‘crime of violence’ definition set forth in . . .
§ 4B1.2, is virtually identical to the definition of a ‘violent felony’” contained in the ACCA. 6
Thus, the Tenth Circuit has applied the Supreme Court’s “ACCA ‘violent felony’ analysis” to
interpret “§ 4B1.2’s definition of ‘crime of violence.’” 7 Importantly, after Johnson, the Tenth
Circuit held that § 4B1.2(a)(2)’s residual clause is unconstitutionally vague. 8 However, the
136 S. Ct. 1257 (2016).
USSG § 4B1.2(a). The definition of crime of violence in USSG § 4B1.2(a) was
recently amended. The Court quotes from the relevant language in effect at the time of
United States v. Wray, 776 F.3d 1182, 1184 (10th Cir. 2015) (citations and quotation
Id. at 1184–85.
United States v. Madrid, 805 F.3d 1204, 1211 (2015) (“The concerns about judicial
inconsistency that motivated the Court in Johnson lead us to conclude that the residual clause of
Tenth Circuit has not directly addressed whether Johnson’s application to the Guidelines applies
retroactively to petitioners seeking collateral review.
The Supreme Court recently granted certiorari in Beckles v. United States. 9 In Beckles,
the Court agreed to resolve the question of whether Johnson applies to the residual clause of
USSG § 4B1.2 and, if so, whether it applies retroactively.
The government concedes that Petitioner’s previous conviction no longer qualifies as a
crime of violence under Johnson. However, the government requests the Court deny Petitioner’s
Motion because: (1) Petitioner waived his right to bring a § 2255 Motion; (2) Petitioner has not
carried his burden of establishing his right to habeas relief because he has failed to establish that
Johnson applies retroactively to collateral review claims based on the Guidelines; and (3)
Petitioner procedurally defaulted on his claim by failing to challenge the enhancement before
this Court or on direct appeal. In addition, the government has filed a Motion to Stay, seeking a
stay of this case pending the Supreme Court’s ruling in Beckles.
COLLATERAL APPEAL WAIVER
The Court first considers the government’s argument that Petitioner has waived his right
to bring a § 2255 Motion. In his plea agreement, Petitioner waived the right to challenge his
sentence “in any collateral review motion, writ or other procedure, including but not limited to a
motion brought under 28 U.S.C. § 2255 except on the issue of counsel’s ineffective assistance in
negotiating or entering this plea or this waiver.” 10
the Guidelines is also unconstitutionally vague. If one iteration of the clause is
unconstitutionally vague, so too is the other.”).
S. Ct. No. 15-8544, cert. granted, 579 U.S. ___, 136 S. Ct. 2510 (June 29, 2016).
Case No. 2:12-CR-533 TS, Docket No. 65 ¶ 12(A)(2)(b).
“[A] waiver of collateral attack rights brought under § 2255 is generally enforceable
where the waiver is expressly stated in the plea agreement and where both the plea and the
waiver were knowingly and voluntarily made.” 11 However, “the constraints which apply to a
waiver of the right to direct appeal also apply to a waiver of collateral attack rights.” 12
The Tenth Circuit has established a three-part test based upon contract principles to
determine the enforceability of appeal waivers. 13 The Court is to consider “(1) whether the
disputed appeal falls within the scope of the waiver of appellate rights; (2) whether the defendant
knowingly and voluntarily waived his appellate rights; and (3) whether enforcing the waiver
would result in a miscarriage of justice.” 14 Petitioner argues that his waiver was not entered
knowingly and would result in a miscarriage of justice. The Court agrees that enforcing the
waiver here would result in a miscarriage of justice.
To prove that enforcement of an appellate waiver would result in a miscarriage of
justice, a defendant must establish at least one of four circumstances: (1) reliance
by the court upon an impermissible factor such as race in imposition of the
sentence; (2) ineffective assistance of counsel in connection with the negotiation
of the waiver; (3) the sentence exceeds the statutory maximum; or (4) the waiver
is otherwise unlawful and seriously affects the fairness, integrity, or public
reputation of judicial proceedings. 15
United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001).
United States v. Hahn, 359 F.3d 1315, 1324–25 (10th Cir. 2004) (en banc) (“[C]ontract
principles govern plea agreements.”).
United States v. Porter, 405 F.3d 1136, 1142 (10th Cir. 2005) (quoting Hahn, 359 F.3d
Id. at 1143 (citing Hahn, 359 F.3d at 1327).
The Tenth Circuit adopted the test employed in United States v. Olano 16 to determine
whether a waiver is otherwise unlawful. In Olano, the Supreme Court set out the proper test to
be applied on plain error review. Under that test, the error must seriously affect the fairness,
integrity, or public reputation of judicial proceedings. 17
The Tenth Circuit addressed plain error in Madrid, where it held that Johnson invalidated
the residual clause of USSG § 4B1.2. In that case, the defendant argued that his prior conviction
for statutory rape was not a crime of violence under the Guidelines in light of Johnson. Since the
defendant had not made the argument below, it was reviewed for plain error. “Plain error occurs
‘when there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4)
seriously affects the fairness, integrity, or public reputation of judicial proceedings.’” 18 The
Tenth Circuit concluded that a Johnson-based guidelines error met all these factors. On the final
factor, the court stated:
We have recognized that when the correct application of the sentencing laws
would likely significantly reduce the length of the sentence, circuit courts have
almost uniformly held the error to implicate fundamental fairness issues. Madrid
received an enhanced sentence under an unconstitutional sentencing Guideline,
undermining the fundamental fairness of his sentencing proceedings. 19
Based on this reasoning in Madrid, the Court concludes that enforcing the waiver in
Petitioner’s plea agreement would result in a miscarriage of justice. The incorrect guideline
determination in this case implicates issues of fundamental fairness and undermines the integrity
507 U.S. 725 (1993).
Id. at 732.
Madrid, 805 F.3d at 1211 (quoting United States v. Frost, 684 F.3d 963, 971 (10th Cir.
Id. at 1212 (citations and quotation marks omitted).
of Petitioner’s sentencing proceedings. Therefore, the collateral appeal waiver does not bar
relief and Petitioner will be permitted to pursue this Motion.20
The Court has previously considered and rejected the government’s remaining
arguments. 21 For substantially the same reasons previously stated, the Court rejects these
arguments here. Therefore, the Court will grant Petitioner’s Motion.
It is therefore
ORDERED that the government’s Motion to Stay (Docket No. 4) is DENIED. It is
ORDERED that Petitioner’s Motion to Correct Sentence Under 28 U.S.C. § 2255
(Docket No. 1 in Civil Case No. 2:16-CV-669) is GRANTED. The Clerk of the Court is directed
to enter Judgment in favor of Petitioner and close this case.
The Court will set this matter for resentencing by separate notice. All further filings
should be done in the underlying criminal case.
At least one District Court within this Circuit has reached the same conclusion. See
United States v. Daugherty, Case No. 07-CR-87-TCK, 2016 WL 4442801, at *6–7 (N.D. Okla.
Aug. 22, 2016).
Culp v. United States, Case No. 2:16-CV-672 TS, 2016 WL 5400395 (D. Utah Sept.
27, 2016); see also Andrews v. United States, Case No. 2:16-CV-501 DB, 2016 WL 4734593 (D.
Utah Sept. 9, 2016).
DATED this 13th day of October, 2016.
BY THE COURT:
United States District Judge
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