Tristan v. United States

RAMIRO MARTINEZ TRISTAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Case No. 6:16-cv-01137-AA

Case No. 6:13-cr-00542-AA

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION

June 25, 2018

OPINION AND ORDER

AIKEN, District Judge:

Petitioner Ramiro Martinez Tristan filed a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 (doc. 29). I heard oral argument on April 11, 2018, and then stayed consideration of the motion pending the parties' submission of supplemental briefs. For the reasons set forth below, petitioner's motion is granted and the judgment in this case is vacated pending resentencing.

BACKGROUND

In 2014, petitioner pleaded guilty to possessing a firearm, in violation of 18 U.S.C. § 922(g). The parties jointly recommended a sentence of fifteen years' imprisonment, the mandatory minimum sentence for armed career criminals who possess firearms. They agreed that the mandatory minimum applied because, under then-existing law, petitioner had at least three prior convictions for predicate offenses under the Armed Career Criminal Act ("ACCA"). I accepted the joint recommendation and sentenced petitioner to fifteen years' imprisonment, to be followed by five years' supervised release.

The prior conviction relevant to petitioner's § 2255 motion is for three counts of Assault in the Second Degree ("Assault II") in Malheur County, Oregon. Petitioner pleaded guilty to those charges in 1994.

STANDARDS

Under 28 U.S.C. § 2255, prisoner in federal custody may ask the court to vacate, set aside, or correct his sentence on the ground that:

[T]he 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[.]

28 U.S.C. § 2255(a). To warrant relief, a § 2255 petitioner must demonstrate that the error of constitutional magnitude had a substantial and injurious effect on the sentence. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) ("We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.").

Under § 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255(b)) (alteration and emphasis in Blaylock). In determining whether a § 2255 motion requires a hearing, "[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief couldbe granted." United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (alteration in original, internal quotation marks and citation omitted).

DISCUSSION

Federal law generally prohibits felons from possessing firearms. 18 U.S.C. § 922(g)(1). Under ordinary circumstance, ten years is the maximum term of imprisonment for a violation of § 922(g). Id. § 924(a)(2). If a defendant with three previous convictions for a "violent felony or serious drug offense" violates § 922(g), however, the ACCA mandates a minimum sentence of fifteen years in prison. Id. § 924(e)(1).

The ACCA defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" 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 the use of explosive, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]" 18 U.S.C. § 924(e)(2)(B) (emphasis added). That final, italicized clause is known as the "residual clause." United States v. Jones, 877 F.3d 884, 886 (9th Cir. 2017). At the time of petitioner's conviction and sentence, Assault II in Oregon qualified as a violent felony under the residual clause. United States v. Crews, 621 F.3d 849, 855 (9th Cir. 2010). But Crews was overruled in June 2015, when the Supreme Court struck down the residual clause as unconstitutionally vague.¹ See Johnson v. United States, 135 S. Ct. 2551, 2257 (2015). Petitioner contends that, after Johnson, his convictions for Assault II in Oregon no longer qualifyas violent felonies and he is therefore no longer subject to the ACCA's fifteen-year mandatory minimum.

Under the post-Johnson ACCA, a prior conviction may qualify as a violent felony in one of two ways. The conviction may fall within the statute's "enumerated offenses clause," which provides that a prior conviction is a violent felony if it "is burglary, arson, or extortion, [or] involves use of explosives[.]" 18 U.S.C. § 924(e)(2)(B). Alternatively, the conviction may meet the requirements of the statute's "elements clause," which makes a conviction a violent felony if it "has as an element of use, attempted use, or threatened use of physical force against the person of another." Id. Because assault is not an enumerated offense, the question before me is whether Assault II is a violent felony under the elements clause. Neither this Court nor the Ninth Circuit has answered that question.

Courts use the "categorical approach" to determine whether a prior conviction qualifies as a "violent felony" under the ACCA's elements clause. United States v. Parnell, 818 F.3d 974, 978 (9th Cir. 2016). Under that approach, courts examine the elements of the state offense to determine whether the state statute is a categorical match to the definition of "violent felony" under the ACCA. The inquiry rests "exclusively" on an examination of the elements of the crime; the "facts underlying the case" have no bearing on the outcome. Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016). The court must presume that "the conviction rested upon nothing more than the least of the acts criminalized." Moncrieffe v. Holder, 569 U.S. 184, 191 (2013) (alterations normalized). "If the language of the state statute only reaches conduct" that falls within the federal definition, "a conviction under that law is categorically" a violent felony and the inquiry ends. United States v. Werle, 877 F.3d 879, 881 (9th Cir. 2017).

If, by contrast, "the language of the state statute sweeps more broadly" than the federal definition, "a conviction under that statute may only qualify as a crime of violence if the statute is 'divisible[.]'" Id. A statute is divisible if it "lists several alternative elements, really several different crimes, as opposed to various means of committing a single crime." Id. If the statute is divisible, the court may rely on the "modified categorical approach" for the limited purpose of determining which functionally separate crime the defendant was convicted of committing. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). The "modified categorical approach" permits the court to review a "limited class of extra-statutory documents such as indictments and jury instructions" in order to answer that question. Werle, 877 F.3d at 881 (alterations normalized).

After the subsection of conviction has been ascertained, the next step is to compare the elements of that subsection to the federal definition. Id. At this stage, as with the initial categorical analysis of the entire statute, courts remain constrained to examine only the elements of the statute of conviction. The "means by which the defendant, in real life, committed his crimes" has "no relevance to whether the offense is an ACCA predicate." Mathis, 136 S. Ct. at 2251.²

I. Oregon's Assault II Statute is Overbroad but Divisible

Oregon's Assault II statute provides that:

(1) A person commits the crime of assault in the second degree if the person:

(a) Intentionally or knowingly causes serious physical injury to another;

(b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon; or

(c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life.

Or. Rev. Stat. § 163.175(1).

I first must determine whether § 163.175(1), as a whole, is a categorical match to the ACCA's definition of violent felony. The Ninth Circuit has held that a state statute must require intentional or knowing use of force in order to qualify as a violent felony under the ACCA elements clause. See, e.g., United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) ("[T]he use of force must be intentional, not just reckless or negligent."); Parnell, 818 F.3d at 981 n.5("We have held, however, that the ACCA's force clause reaches only offenses requiring the intentional use of force.") (citing Dixon, 805 F.3d at 1197 and United States v. Lawrence, 627 F.3d 1281, 1284 (9th Cir. 2010)). Because subsection (1)(c) criminalizes merely reckless causation of physical injury by means of a deadly weapon, Oregon's Assault II statute is overbroad.

The next question is whether the statute is divisible. That inquiry turns on whether "a disjunctively worded phrase supplies alternative elements, which are essential to a jury's finding of guilt, or alterative means, which are not." Dixon, 805 F.3d at 1198 (internal quotation marks omitted). When a statute is divisible, it requires the prosecutor to "select the relevant element" from a "list of alternatives. And the jury, as instructions in the case will make clear, must then find that element, unanimously and beyond a reasonable doubt." Id. Here, I conclude that the statute is divisible based on (1) the structure of the statute, which clearly sets out three functionally separate crimes;³ and (2) Oregon's model jury instructions, which provide a separate instruction for each subsection of § 163.175(...