Nakai v. United States

Gregory Nakai, Petitioner, v. United States of America, Respondent.

No. CV-16-08310-PCT-DGC (JZB)

No. CR-01-01072-PHX-DGC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

December 22, 2020

REPORT AND RECOMMENDATION

TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:

Petitioner Gregory Nakai (hereafter, "Movant") filed a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. (Doc. 3.)¹

I. Summary of Conclusion.

In 2003, this Court convicted and sentenced Movant on 18 counts, comprising nine substantive counts that served as the predicate offenses for nine additional counts under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. §§ 924(c), (j). Movant argues that the predicate offenses of his § 924 convictions no longer constitute "crimes of violence" following recent developments in the relevant case law, and therefore his § 924 convictions must be vacated. Movant is entitled to relief on two counts (where kidnapping was thepredicate offense), but not the remaining § 924 counts. Accordingly, the Court recommends that Movant's Motion to Vacate, Set Aside, or Correct Sentence be granted in part and denied in part as detailed herein.

II. Background.

A. Factual Background.

The Ninth Circuit set forth the following facts in Movant's direct appeal, United States v. Nakai, 413 F.3d 1019, 1021 (9th Cir. 2005):

At trial, the government established that on August 17, 2001, the defendant Gregory Nakai (hereafter Gregory) and his brothers, Jimmy and Jakegory, all members of the Navajo tribe, had been drinking. They went to Round Rock Lake to sell bottles of Budweiser beer and were joined by Johnny Orsinger, Teddy Orsinger, and Dennie Leal. They sold several 40 ounce bottles to Jesbert Sam and David Begay. At some point, Gregory said, "Let's jack up these guys." Jimmy understood his brother to mean that they should beat Begay and Sam and take their car. When Begay tried to buy another bottle, the group jumped on him and hit him. Gregory knocked him down with blows to his head. Jakegory and Leal kicked him as he lay on the ground.

Leal approached Sam as Sam sat in his own car and knocked him from his seat to the ground. Leal and Johnny Orsinger hog-tied Sam and Begay with electrical cords. The two victims were dumped in the back of Sam's car. Jimmy took the driver's seat and drove off accompanied by Johnny Orsinger. Jimmy had with him Gregory's handgun, which Jimmy gave to Johnny, who pistol-whipped Sam about ten times as they drove.

Gregory, Jakegory, Teddy Orsinger, and Dennis Leal followed Jimmy in Gregory's car, which he was too drunk to drive and which was driven by Teddy, who accidentally flipped it. Gregory joined Jimmy and Johnny in Sam's car, which Jimmy drove into the woods and stopped. Johnny took Begay, who was still conscious out of the back and laid him on the ground. Gregory did the same with Sam, who wasn't moving. A little later Jimmy heard a shot and turned to see that Begay had been shot in the head and that Johnny was standing next to him with a gun in his hand. Gregory said, "Give me the gun." Johnny gave it to him. Gregory shot Sam five times in the chest and/or head. Jimmy believed both Begay and Sam were now dead. Gregory covered the bodies with a blanket.

Gregory, Jimmy, and Johnny rejoined Leal, Teddy Orsinger, and Jakegory. The group decided to burn the bodies of the victims and made a fire for this purpose. They cleaned Sam's car of broken glass. Gregory took Sam's drill and traded it for a pair of tires that he put on his own car. The next day, Gregory, Jimmy and Leal retrieved some of the remains of one victim, put them in a bag and burned them in a hole.

B. Conviction & Sentencing.

On August 29, 2003, the Court convicted and sentenced Movant on the following18 counts, comprising nine substantive counts and nine counts under 18 U.S.C. §§ 924(c), (j) for Movant's use of a firearm in connection with the substantive counts:

Substantive Count (§ 924 Count)2

Substantive Offense

Count 1 (Count 2)

First-Degree Murder

18 U.S.C. § 1111

Count 3 (Count 4)

Felony Murder-Kidnapping

18 U.S.C. §§ 1111, 1201(a)(2)

Count 5 (Count 6)

Kidnapping

18 U.S.C. § 1201(a)(2)

Count 7 (Count 8)

First-Degree Murder

18 U.S.C. § 1111

Count 9 (Count 10)

Carjacking

18 U.S.C. § 2119

Count 11 (Count 12)

Felony Murder-Robbery

18 U.S.C. §§ 1111, 2111

Count 13 (Count 14)

Robbery

18 U.S.C. § 2111

Count 15 (Count 16)

Felony Murder-Kidnapping

18 U.S.C. §§ 1111, 1201(a)(2)

Count 17 (Count 18)

Kidnapping

18 U.S.C. § 1201(a)(2)

(CR Doc. 280.) For each substantive count, Movant received a life sentence; the life sentences for the substantive counts run concurrently. (Id.) Consecutive to these life sentences are the sentences for the § 924 counts, which consist of a 120-month term for Count 2, followed by a 300-month term for Count 4, followed by 300-month term for Count 6, followed by consecutive life sentences for the remaining counts. (Id.)

C. Motion to Vacate, Set Aside, or Correct Sentence.

On June 13, 2016, with authorization from the Ninth Circuit Court of Appeals, Movant filed the present Second or Successive Motion to Vacate, Set Aside, or CorrectSentence asserting two grounds for vacating his convictions under § 924. (Doc. 3.) In Ground One, Movant argued: (a) that he could not receive multiple charges under § 924 and (b) that the predicate offenses for his § 924 convictions are no longer recognized as predicate offenses under Johnson [II].³ (Id. at 7, 10.) In Ground Two, Movant argued that § 924(c) is the lesser offense of § 924(j), and therefore his convictions under both constituted double jeopardy. (Id. at 7, 11.)

On May 22, 2017, the government filed a Motion to Dismiss (doc. 6); Movant filed a response (doc. 11); and the government filed a reply to the response (doc. 12). Consideration of the motion was referred to the undersigned for a Report & Recommendation ("R&R"). (Doc. 5.) On December 8, 2017, the undersigned issued an R&R recommending that the motion be granted. (Doc. 13.) On April 16, 2018, the Honorable David G. Campbell adopted the R&R in part and rejected it in part. (Doc. 17.) Judge Campbell adopted the portion of the R&R recommending the dismissal of the first claim of Ground One and the entirety of Ground Two. (Id. at 6.) However, Judge Campbell rejected the portion of the R&R recommending the dismissal of the second claim of Ground Two where the undersigned had found that Movant had not properly raised a Johnson II claim nor demonstrated entitlement to relief based on Johnson II. (Id. at 3-6; see Doc. 13 at 4-7.) Judge Campbell found that while Movant's argument in Ground Two was "terse and not a model of clarity," Movant had properly raised the issue of whether "some of his predicate offenses are no longer valid predicate offenses under Johnson [II]." (Doc. 17 at 4.) Judge Campbell then remanded to the undersigned to order supplemental briefing on Movant's Johnson II claims and for another R&R. (Id. at 4-6.)

Accordingly, on April 18, 2018, the Court ordered Movant to file a supplemental brief "outlining his Johnson [II] claims in full." (Doc. 19.) Movant filed a SupplementalBrief and Supplemental Authorities. (Docs. 22, 29.) Rather than filing a responsive brief, the government moved to stay the proceedings pending the resolution of cases involving related issues before the Supreme Court and Ninth Circuit. (Doc. 23.) On September 20, 2018, the Court granted the motion and stayed the proceedings. (Doc. 24.) On October 22, 2020, the Court lifted the stay and ordered briefing on whether the predicate offenses of the § 924 convictions remain "crimes of violence" in light of recent developments in relevant case law, particularly United States v. Davis, 139 S. Ct. 2319 (2019) in which the Supreme Court struck down the residual clause of the ACCA's definition of "crime of violence," 18 U.S.C. § 924(c)(3)(B), as unconstitutionally vague. (Doc. 44.) On December 4, 2020, the parties filed the ordered briefs. (Docs. 46 [Movant's brief], 47 [the government's brief].)

III. Movant's Johnson II Claims.

The Court considers Movant's Motion to Vacate, Set Aside, or Correct Sentence (doc. 3); the government's Motion to Dismiss (doc. 6); Movant's Response to the Motion to Dismiss (doc. 11); the government's Reply to Movant's Response (doc. 12); Movant's first Supplemental Brief (doc. 22); Movant's Supplemental Authorities (doc. 29); Movant's second Supplemental Brief (doc. 46); and the government's Supplemental Brief (doc. 47).

In his Motion to Vacate, Set Aside, or Correct Sentence, Movant argued that his convictions under § 924 should be vacated because:

Johnson [II]/Welch changed the law substantively, and it is now required that a person be charged under the proper charge, which is listed, as predicate offenses, and Petitioner[']s charges do not meet this requirement.

(Doc. 3 at 10.) In his first supplemental brief, Movant argued more specifically that first-degree murder, felony murder, kidnapping, and robbery are not "crimes of violence." (Doc. 22 at 6-16.) In his second supplemental brief, he argued the same and added that carjacking is not a "crime of violence."⁴ (Doc. 46.) The government concedes thatkidnapping is not a "crime of violence" but argues that the remaining offenses are "crimes of violence." (Doc. 47.)

Under the ACCA, a "crime of violence" is:

an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). The subsection (A) definition is known as the "elements" or "force" clause, and the subsection (B) definition is known as the "residual" clause. United States v. Davis, 139 S. Ct. 2319, 2324 (2019); United States v. Gutierrez, 876 F.3d 1254, 1256 (9th...