Carpio v. United States, CASE NO. C16–0647JLR

218 F.Supp.3d 1182

Rogelio CARPIO, Petitioner,

v.UNITED STATES of America, Respondent.

CASE NO. C16–0647JLR

United States District Court, W.D. Washington, at Seattle.

Signed October 28, 2016

Ann Wagner, Michael Filipovic, Nancy Tenney, Federal Public Defender's Office, Seattle, WA, for Petitioner.

US Attorney Habeas, Nicholas William Brown, Stephen Paul Hobbs, Michael S. Morgan, US Attorney's Office, Seattle, WA, for Respondent.

ORDER GRANTING PETITION

JAMES L. ROBART, United States District Judge

I. INTRODUCTION

Before the court is Petitioner Rogelio Carpio's petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his 70–month prison sentence in the wake of the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). (Pet. (Dkt. # 1).) The court has considered Mr. Carpio's petition, the United States of America's ("the Government") answer to Mr. Carpio's petition (Answer (Dkt. # 10)), Mr. Carpio's reply in support of his petition (Reply (Dkt. # 12)), the relevant portions of the record, and the applicable law. Considering itself fully advised,¹ the court GRANTS Mr. Carpio's Section 2255 habeas petition and DIRECTS the Clerk to schedule a resentencing for Mr. Carpio as set forth below.

II. BACKGROUND

A. Legal Background

In Johnson , the Supreme Court concluded that the Armed Career Criminal Act's ("ACCA") residual clause, which defines a "violent felony" to include any felony that "involves conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B), is unconstitutionally vague.² 135 S.Ct. at 2557. The Supreme Court held that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice and invites arbitrary enforcement by judges," id. and "[i]ncreasing a defendant's sentence under the clause denies due process of law," id. at 2563. The Supreme Court subsequently announced that the rule in Johnson was "a new substantive rule that has retroactive effect in cases on collateral review." Welch , 136 S.Ct. at 1268.

Under the United States Sentencing Guidelines ("the Guidelines"), a defendant's base offense level is enhanced if the defendant has "at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2). At the time of Mr. Carpio's sentencing, the Guidelines defined a "crime of violence" as "any offense under federal, state, or local 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 or 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."³ U.S.S.G. § 4B1.2(a). The "crime of violence" definition was comprised of three parts: (1) the elements clause, (2) the enumerated offenses clause, and (3) the residual clause. See United States v. Ladwig , 192 F.Supp.3d 1153, 1157-58, 2016 WL 3619640, at *2 (E.D. Wash. June 28, 2016) (describing identical language in the ACCA as the elements clause, the enumerated offenses clause, and the residual clause).

The Guidelines' former residual clause is at issue in Mr. Carpio's petition. (See generally Pet.) The residual clause allowed a court to enhance a person's sentence if the person has at least two prior convictions for a felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). The Guidelines' residual clause was identical to the ACCA's unconstitutional residual clause.⁴ Compare 18 U.S.C. § 924(e)(2)(B), with U.S.S.G. § 4B1.2(a)(2) ; see Johnson , 135 S.Ct. at 2557.

B. Factual Background

On February 8, 2012, Mr. Carpio pled guilty to one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). United States v. Carpio , No. CR11–0405MJP, Dkt. ## 17 (Change of Plea Hearing), 19 (Plea Agreement). Mr. Carpio, the Government, and the United States Probation Office ("Probation") agreed that Mr. Carpio had two prior crimes of violence under the Guidelines. Id. Dkt. ## 19 (Plea Agreement), 22 (Gov't Sentencing Memo.), 23 (Carpio Sentencing Memo.). Accordingly, all of the parties agreed that Mr. Carpio's total offense level was 25 and corresponded to a Guidelines range of 70 to 87 months. Id. Dkt. ## 19 (Plea Agreement), 22 (Gov't Sentencing Memo.). On May 4, 2012, the court sentenced Mr. Carpio to 70 months' imprisonment. (Pet. at 32 (Sentencing Tr. at 14:8–13).) The court adopted the finding in the presentence report that Mr. Carpio's prior convictions for Washington second-degree robbery and California Rape by Drugs were "crimes of violence" under the Guidelines. (Id. at 32 (Sentencing Tr. at 14:4–7).) The court made no finding on the record, however, as to which part of the Guidelines' definition of crime of violence the court relied on in imposing Mr. Carpio's sentence. (Seeid. at 19–40 (Sentencing Tr.).) The plea agreement stated that Mr. Carpio waived his right to directly appeal and collaterally attack his sentence. (Answer at 6.)

On May 5, 2016, Mr. Carpio filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct this sentence. (See Pet.) He contends that the residual clause in the Guidelines suffers the same constitutional flaw as the identically worded clause at issue in Johnson and is likewise void for vagueness. (Pet. at 4.) Mr. Carpio further argues that his two previous convictions, upon which his 70–month sentence is based, were "crimes of violence" at the time of his sentencing only under the residual clause. (Id. ) Accordingly, he argues that "[t]his unconstitutional conclusion subjected him to a Guidelines range of 70 to 87 months, nearly four years higher than his true Guidelines range of 24 to 30 months." (Id. at 2.) Mr. Carpio argues that if he had not been unconstitutionally sentenced under the Guidelines' residual clause, "he would have been released from prison more than a year ago." (Id. )

III. ANALYSIS

A. Legal Standard

A prisoner in federal custody may collaterally challenge his sentence under 28 U.S.C. § 2255 on "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 ...." 28 U.S.C. § 2255(a). A prisoner seeking such relief must generally bring his Section 2255 petition within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). However, a prisoner may also seek habeas relief within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). To determine whether the court imposed an unconstitutional sentence pursuant to the residual clause in the Guidelines and whether Mr. Carpio's petition is timely, the court must first determine whether Johnson applies to the Guidelines and if it does, whether it applies retroactively to cases on collateral review.

B. Johnsonand the Guidelines

The court must decide two threshold questions: (1) whether the holding in Johnson —that the ACCA's residual clause is unconstitutionally vague—applies to the identically worded residual clause in the Guidelines; and (2) if so, whether Johnson applies retroactively to cases on collateral review.⁵ Judges in the Western District of Washington have uniformly concluded that the residual clause in the Guidelines is unconstitutionally vague under Johnson and that the decision applies retroactively to the Guidelines. See Gilbert v. United States , No. C15–1855JCC, 2016 WL 3443898 (W.D. Wash. June 23, 2016) ; Pressley v. United States , 201 F.Supp.3d 1277, 2016 WL 4440672 (W.D. Wash. Aug. 11, 2016) ; Jennings v. United States , No. C16–0616MJP, 2016 WL 4376778 (W.D. Wash. Aug. 17, 2016) ; Dietrick v. United States , No. C16–0705MJP, 2016 WL 4399589 (W.D. Wash. Aug. 18, 2016) ; Parker v. United States , No. C16–0534RSM, 2016 WL 4418007 (W.D. Wash. Aug. 19, 2016) ; Beyer v. United States , No. C16–5282BHS, 2016 WL 4611547 (W.D. Wash. Sept. 6, 2016) ; Acoba v. United States , No. C16–0531BHS, 2016 WL 4611546 (W.D. Wash. Sept. 6, 2016) ; see also Ladwig , 192 F.Supp.3d 1153, 2016 WL 3619640 ; United States v. Dean , 169 F.Supp.3d 1097 (D. Or. 2016) ; United States v. Hoopes , 195 F.Supp.3d 1161, 2016 WL 3638114 (D. Or. July 5, 2016). The undersigned judge sees no reason to deviate from these well-reasoned decisions and reaches the same conclusion.

1. Johnson 's Applicability to the Guidelines' Residual Clause

The court agrees with Mr. Carpio that Johnson's holding applies with equal force to the identically worded residual clause in the Guidelines. (See Pet. at 14–15.) Before the Supreme Court decided Johnson , the Ninth Circuit Court of Appeals had allowed vagueness challenges to the Guidelines. See United States v. Johnson , 130 F.3d 1352, 1354 (9th Cir. 1997). The Ninth Circuit also makes "no distinction between the terms ‘violent felony’ [in the ACCA] and 'crime of violence [in the Guidelines] for purposes of interpreting the residual clause." United States v. Spencer , 724 F.3d 1133, 1138 (9th Cir. 2013). The court concludes that the Ninth Circuit's identical treatment of the two residual clauses dictates that Johnson 's vagueness holding applies to the Guidelines. See, e.g. , Gilbert , 2016 WL 3443898, at *1 ; Pressley , ––– F.Supp.3d at ––––, 2016 WL 4440672, at *1 ; Jennings , 2016 WL 4376778, at *1 ; Parker , 2016 WL 4418007, at *2. In addition, the Government "agrees that Johnson ['s] vagueness holding applies to the Career Offender Guideline[s'] residual clause." (Answer at 10, 14.) For all of these reasons, the court...