Gill v. United States of America

Filing 14

ORDER granting petitioner's 2255 Motion; The Court VACATES and SETS ASIDE the judgment in United States v. Gill, Case Nos. CR11-26-RAJ, CR11-66-RAJ, and CR11-77-RAJ. The Court will resentence Gill, permit him to submit objections to his Presentence Report pursuant to Federal Rule of Criminal Procedure 32(i)(1)(D), and allow both sides to argue for an appropriate and lawful sentence by Judge Richard A Jones. (RS)

HONORABLE RICHARD A. JONES

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CORY EUGENE GILL,
Plaintiff,

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v.

Defendant.

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I.

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INTRODUCTION

This matter comes before the Court on Petitioner Cory Eugene Gill’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in
Federal Custody. Dkt. # 1. For the reasons that follow, the Court GRANTS Gill’s
motion.

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ORDER

UNITED STATES OF AMERICA,

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Case No. CV16-933-RAJ

II. BACKGROUND
On May 10, 2011, Gill pleaded guilty to seven counts of bank robbery in violation
of 18 U.S.C. § 2113(a). United States v. Cory Eugene Gill, Case No. CR11-77-RAJ,
Dkt. ## 5-6 (W.D. Wash. May 10, 2011). Those counts were charged under three
separate case numbers: CR11-26-RAJ, CR11-66-RAJ, and CR11-77-RAJ. At a
consolidated sentencing hearing, the Court examined Gill’s criminal history, which
included: (1) a 1998 federal bank robbery conviction, 18 U.S.C. § 2113(a); and (2) a

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2000 Nevada robbery conviction, NRS § 200.380. PSR ¶ 80. The Court determined that

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Gill qualifies as a career offender under § 4B1.1 of the 2010 United States Sentencing

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ORDER – 1

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Guidelines (“U.S.S.G.”) because his instant bank robbery convictions and his two
previous convictions were “crimes of violence,” a term defined by U.S.S.G § 4B1.2(a).
PSR ¶¶ 25, 80. Based on this determination, the Court set a guideline range of 151 to 188
months. Gill, Case No. CR11-77-RAJ, Dkt. # 14 at 3-5. Had he not been found to
qualify as a career offender, his guideline range would have been 100 to 125 months. See
PSR ¶¶ 79, 81; U.S.S.G. § 5A. The Court sentenced Gill to three concurrent terms of 50
months to be served consecutively with a 108-month sentence imposed by the Northern
District of Texas, amounting to an effective prison term of 158 months. Gill, Case No.
CR11-77-RAJ, Dkt. # 14 at 30.
On June 15, 2016, Gill filed a petition under 28 U.S.C. § 2255 challenging the
Court’s determination that he qualifies as a career offender. Dkt. # 1. Gill contends that
his instant and prior convictions do not qualify as crimes of violence, and thus, that it was
improper to sentence him as a career offender. Id. The Government opposes the motion.
Dkt. # 8.
III. LEGAL STANDARD

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Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion to vacate, set
aside, or correct his or her sentence “upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack . . . .”
IV. DISCUSSION

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The issue is whether Gill was sentenced properly as a career offender. Under the
guidelines, a defendant is a career offender if:

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(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or a controlled
substance offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance offense.

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U.S.S.G. § 4B1.1. The term “crime of violence” includes any federal or state

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ORDER – 2

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offense punishable by more than one year in prison that (1) “has as an element the use,
attempted use, or threatened use of physical force against the person of another,” (2) “is
burglary of a dwelling, arson, or extortion, involves use of explosives,” or (3) “otherwise
involves conduct that presents a serious potential risk of physical injury to another.”
These three categories are known respectively as the (1) “elements clause,” the (2)
“enumerated offenses clause,” and the (3) “residual clause.” U.S.S.G. § 4B1.2. Carpio
v. United States, No. --- F. Supp. ---, C16-0647-JLR, 2016 WL 6395192, at *1 (W.D.
Wash. Oct. 28, 2016),
The residual clause of § 4B1.2 is in a state of uncertainty. On June 26, 2015, the
Supreme Court held that an identical clause in the Armed Career Criminal Act (“ACCA”)
is unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551, 2557 (2015)
(“Johnson II”). In a subsequent decision, the Supreme Court held that Johnson applies
retroactively to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1268
(2016). The Court has not yet resolved whether these decisions invalidating the ACCA’s
residual clause apply with equal force to the residual clause of § 4B1.2.1
Here, Gill contends that the Supreme Court’s decision in Johnson II disqualifies
his instant and prior convictions as “crimes of violence” sufficient to sentence him as a
career offender. The Government opposes this contention on the basis that his claims are
procedurally defaulted, time-barred, foreclosed by principles of retroactivity, and
meritless.
A.

Gill’s Claims Are Not Procedurally Defaulted

The Government argues that Gill’s claims under Johnson II are procedurally
defaulted because he did not raise them at sentencing or on direct appeal. The Court has
rejected this line of argument before and does so again here. See Haffner v. United
States, No. C16-448-RAJ, 2016 WL 6897812, at *4 (W.D. Wash. Nov. 23, 2016)
(“Petitioner has demonstrated that the Johnson [II] decision specifically overruled

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The Supreme Court has granted certiorari in a case anticipated to resolve this issue. See
Beckles v. United States, 136 S. Ct. 2510 (2016).

ORDER – 3

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existing precedent . . . , overturned a longstanding and widespread practice to which a
near-unanimous body of lower court authority had adhered and disapproved a practice
which the Supreme Court itself had previously sanctioned . . . . [T]his means that
Petitioner has established that his claim was not ‘reasonably available to him at the time
he could have filed a direct appeal.”).
B.

Gill’s Motion Is Timely

The Government argues that Gill’s motion is untimely. But Gill filed the instant
motion on June 15, 2016, within one year of the Court’s decision in Johnson II, which
was published on June 26, 2015. Thus, Gill filed his motion within the statute of
limitations set forth under 28 U.S.C. § 2255(f)(3) (“A 1-year period of limitation shall
apply to a motion under this section. The limitation period shall run from the latest of . . .

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the date on which the right asserted was initially recognized by the Supreme Court, if that
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right has been newly recognized by the Supreme Court and made retroactively applicable
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to cases on collateral review.”).
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Johnson II Applies Retroactively

The Government contends that the Supreme Court’s decision in Johnson II does
not apply retroactively to a defendant seeking to challenge a U.S.S.G. calculation on
collateral review. The Court recently addressed this issue and found that Johnson II does
apply retroactively to such cases. See Haffner, 2016 WL 6897812, at *3-4; see also
Gibson v. United States, No. C15-5737 BHS, 2016 WL 3349350, at *2 (W.D. Wash. June
15, 2016); Pressley v. United States, No. C16-510RSL, 2016 WL 4440672, at *2 (W.D.
Wash. Aug. 11, 2016). The Court declines to deviate from its previous holding. Johnson
II applies retroactively to Gill’s claims.
D.

Gill Does Not Qualify as a Career Offender

Gill argues that the Supreme Court’s invalidation of the residual clause in Johnson

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II means that his instant and prior convictions under the federal bank robbery statute, 18

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U.S.C. § 2113(a), and his prior conviction under Nevada’s robbery statute, NRS

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§ 200.380, are not crimes of violence. But Johnson II does not benefit Gill unless he can

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ORDER – 4

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show that his convictions do not otherwise qualify as crimes of violence under the
elements clause or the enumerated offenses clause. Haffner, 2016 WL 6897812, at *5.
Neither bank robbery nor robbery is an enumerated offense.2 U.S.S.G. § 4B1.2(a)(2).
Accordingly, the dispositive question is whether Gill’s convictions qualify under the
elements clause.
As noted, an offense is a crime of violence under the elements clause if it “has as
an element the use, attempted use, or threatened use of physical force against the person
of another.” U.S.S.G. § 4B1.2(a)(1). The physical force sufficient to meet this definition
comes with two requirements. First, “the phrase physical force means violent force—that
is, force capable of causing physical pain or injury to another person.” Johnson v. United
States, 559 U.S. 133, 140 (2010) (emphasis in original) (“Johnson I”). Second, “the use
of force must be intentional, not just reckless or negligent.” United States v. Dixon, 805
F.3d 1193, 1197 (9th Cir. 2015). We must apply a categorical approach to decide if a
prior offense meets these requirements, meaning we look only to the statutory definition
of the offense and not to the underlying conduct. United States v. Wenner, 351 F.3d 969,
972 (9th Cir. 2003). If the statute criminalizes conduct that is not a crime of violence
under § 4B1.2, then it is overbroad and does not qualify as a predicate offense under the
categorical approach. Id.
i.

Federal Bank Robbery Conviction

The Court has previously concluded that 18 U.S.C. § 2113(a) is a crime of
violence under the elements clause of U.S.S.G. § 4B1.2. See Haffner, 2016 WL
6897812, at *6-7; Brown v. United States, C16-607-RAJ, slip op. at 3-6 (W.D. Wash.
Oct. 5, 2016). Gill is correct that another judge in this district, the Honorable John D.
Coughenour, recently reached a different conclusion. See Doriety v. United States, C16924-JCC, slip op. at 9-11 (W.D. Wash. Nov. 10, 2016) (holding that “federal bank

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The Government argues otherwise. It relies on a comment accompanying U.S.S.G.
§ 4B1.2 that includes “robbery” as a crime of violence. This comment, however, “is not, in the
absence of the residual clause post-Johnson, consistent with the text of § 4B1.2(a).” See Haffner
v. United States, No. C16-448-RAJ, 2016 WL 6897812, at *5 (W.D. Wash. Nov. 23, 2016).

ORDER – 5

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robbery is not a crime of violence under the elements clause”). Having reviewed Judge
Coughenour’s decision in Doriety, the Court declines to change course from its previous
rulings. Whether federal bank robbery qualifies as a crime of violence is a legal issue
over which reasonable jurists can disagree. As it did in Haffner and Brown, the Court
again holds that binding Ninth Circuit precedent necessitates the conclusion that federal
bank robbery is a crime of violence.
ii.

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Unlike the federal bank robbery statute, the Nevada state robbery statute does not

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Nevada State Robbery Conviction

qualify as crime of violence under the elements clause. That statute provides in relevant
part:
Robbery is the unlawful taking of personal property from the person of
another, or in the person’s presence, against his or her will, by means of
force or violence or fear of injury, immediate or future, to his or her person
or property, or the person or property of a member of his or her family, or
of anyone in his or her company at the time of the robbery. A taking is by
means of force or fear if force or fear is used to:
(a) Obtain or retain possession of the property;
(b) Prevent or overcome resistance to the taking; or

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(c) Facilitate escape.

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The degree of force used is immaterial if it is used to compel acquiescence
to the taking of or escaping with the property. A taking constitutes robbery
whenever it appears that, although the taking was fully completed without
the knowledge of the person from whom taken, such knowledge was
prevented by the use of force or fear.

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NRS § 200.380(1) (emphasis added). The Nevada Supreme Court has applied this statute
in circumstances where no affirmative use, attempted use, or threat of physical force was
employed. See Robertson v. Sheriff, Clark Cty., 565 P.2d 647, 647-48 (Nev. 1977). In
Robertson, the defendant had robbed a bar while the bartender hid in the restroom. Id. at
647. Although the bartender was in the restroom when the defendant entered the bar and
remained there throughout the duration of the robbery, the Nevada Supreme Court held

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ORDER – 6

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this was sufficient to constitute robbery under NRS § 200.380.3 Id. at 648. Given this
precedent, as well as the statutory language specifying that the “degree of force used is
immaterial,” NRS § 200.380 is not a crime of violence under the elements clause. The
Supreme Court has emphasized that such crimes must categorically include as an element
the use, attempted use, or threat of “violent force—that is, force capable of causing
physical pain or injury to another person.” Johnson I, 559 U.S. at 140 (emphasis in
original). In Johnson I, the Court held that Florida’s battery statute was not a crime of
violence because it prohibited “any intentional physical contact, ‘no matter how slight.’”
Id. at 138 (quoting State v. Hearns, 961 So. 2d 211, 218 (Fla. 2007)). Like the Florida
statute, NRS § 200.380 is overbroad because it prohibits conduct that does not require the
requisite degree of physical force, as defined by the Supreme Court.
In response, the Government correctly points out that the Ninth Circuit has held
that the Nevada robbery statute qualifies as a crime of violence. Dkt. # 8 at 40 (citing
United States v. Harris, 572 F.3d 1065, 1066 (9th Cir. 2009)). But Harris was decided in
2009, prior to the Supreme Court’s decision in Johnson I, which was decided in 2010.
Where intervening Supreme Court jurisprudence cannot be reconciled with existing
circuit authority, “district courts should consider themselves bound by the intervening
higher authority and reject the prior opinion of [the Ninth Circuit] as having been
effectively overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003); see also
Day v. Apoliona, 496 F.3d 1027, 1031 (9th Cir. 2007) (“There are . . . circumstances in
which a district court . . . can disregard circuit precedent because of intervening Supreme
Court authority.”).
Harris cannot be reconciled with Johnson I because it did not account for the de
minimis degree of force criminalized by NRS § 200.380. The Court is thus compelled to
follow the Supreme Court’s intervening decision in Johnson I and finds that NRS
§ 200.380 is not a crime of violence under the elements clause. Because Gill’s Nevada
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We are bound by the Nevada Supreme Court’s interpretation of state law. Johnson v.
United States, 559 U.S. 133, 138 (2010).

ORDER – 7

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robbery conviction was one of the two prior convictions relied upon by the Court to
sentence him as a career offender,4 he is entitled to resentencing. Gill’s motion is
granted.
V. CONCLUSION

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For the reasons stated above, the Court GRANTS Gill’s motion. The Court finds
that Gill was erroneously sentenced as a career offender in violation of the law. The
Court VACATES and SETS ASIDE the judgment in United States v. Gill, Case Nos.
CR11-26-RAJ, CR11-66-RAJ, and CR11-77-RAJ. The Court will resentence Gill,
permit him to submit objections to his Presentence Report pursuant to Federal Rule of
Criminal Procedure 32(i)(1)(D), and allow both sides to argue for an appropriate and
lawful sentence.

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DATED this 7th day of February, 2017.

A

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The Honorable Richard A. Jones
United States District Judge

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The Government contends that Gill has additional prior convictions upon which the
Court can rely in upholding his status as a career offender. These other convictions, however,
were not cited in the PSR as the basis for recommending that Gill be sentenced as a career
offender. PSR ¶ 80.

ORDER – 8