United States v. Carrion

236 F.Supp.3d 1280

UNITED STATES of America, Respondent/Plaintiff

v.Daniel CARRION, Petitioner/Defendant

Case No. 2:03–cr–030–JAD–RJJ–1

United States District Court, D. Nevada.

Signed February 17, 2017

Daniel Carrion, Bruceton Mills, WV, pro se.

Order Vacating Sentence under Johnson v. U.S.

Jennifer A. Dorsey, United States District Judge

When Daniel Carrion was sentenced for being a felon in possession of a firearm after his 2004 guilty plea, the district judge found that he qualified for an enhanced 15–year sentence under the Armed Career Criminal Act (ACCA).¹ The Supreme Court invalidated a key provision of the ACCA—the residual clause—as unconstitutionally vague in Johnson v. U.S.² and recognized last spring in Welch v. U.S.³ that Johnson 's rule applies retroactively.

Having exhausted his appeals, Carrion moves to vacate his sentence under 28 U.S.C. § 2255.⁴ Although it is not clear from the record whether Carrion's sentencing judge enhanced his sentence under the ACCA's now-invalidated residual clause or another provision, I join the growing majority of courts that hold that once a defendant shows that his sentencing judge may have relied on the residual clause, he may use intervening case law to demonstrate that his prior convictions do not qualify under the ACCA's remaining provisions. And because Carrion has made that showing and his convictions no longer qualify for enhancement under the ACCA, I grant his motion.

Background

Title 18, section 922(g) of the United States Code makes it a federal felony for certain categories of people to possess firearms. The ACCA's violent-felony provision requires judges to impose a mandatory, 15–year minimum sentence for § 922(g) offenses when a defendant has three or more prior convictions for violent felonies.⁵ Before Johnson , the ACCA offered three ways for a conviction to qualify as a violent felony: (1) it was for a crime that involved the use of force against someone (the force clause), (2) it was for a serious common-law crime like burglary or arson (the enumerated-offenses clause), or (3) it was for a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause).⁶

Figuring out whether a defendant's prior convictions qualify as violent felonies under the ACCA has proven difficult. This area of the law is infamously confusing, and courts have described it as a "hopeless tangle"⁷ and "a morass of inconsistent case law."⁸ Indeed, the Ninth Circuit remarked in 2011 that "over the past decade, perhaps no other area of the law" had demanded more of the court's resources.⁹

Recent Supreme Court cases have made it increasingly difficult for the government to prove that a defendant's prior conviction qualifies as a violent felony. In several watershed cases, the Supreme Court announced significant changes so that many convictions that had previously qualified no longer do, particularly under the enumerated-offenses and force clauses.¹⁰ This clampdown hit a high-water mark in Johnson when the Court struck down the residual clause as unconstitutionally vague,¹¹ leaving the enumerated-offenses and force clauses as the only remaining avenues to sentence a defendant under the violent-felony enhancement. And just last year in Welch , the High Court held that Johnson 's rule is a substantive one that applies retroactively on collateral review.¹²

But when Carrion pled guilty to being a felon in possession of a firearm in violation of § 922(g) back in 2004, it was much easier to qualify a prior conviction as a violent felony under the ACCA.¹³ Unsurprisingly, Carrion's pre-sentence investigation report suggested that his prior California convictions for assault with a deadly weapon and robbery qualified him as an armed career criminal.¹⁴ The sentencing judge adopted that conclusion and sentenced Carrion to the statutory mandatory minimum of 15 years in prison. In doing so, the judge did not explicitly reference which of the ACCA's three clauses Carrion's prior convictions qualified under,¹⁵ and there is no evidence anywhere in the record that he relied on any one clause.¹⁶ The Ninth Circuit affirmed the sentence, agreeing that Carrion's prior convictions qualified as violent felonies under the ACCA's force clause or residual clause.¹⁷

Carrion now moves to vacate his ACCA-enhanced, 15–year sentence under Johnson .¹⁸ He avers that without the ACCA enhancement and with acceptance of responsibility, his range of imprisonment under the sentencing guidelines would have been 30–37 months,¹⁹ and his statutory maximum sentence was ten years. Based on my rough math, he is now in his fourteenth year of federal custody.²⁰

Discussion

Carrion would normally be foreclosed from challenging his sentence because he exhausted his direct and collateral appeals. But he contends that his motion falls under 28 U.S.C. § 2255's narrow exception that allows a defendant to bring a successive petition when the Supreme Court announces a new, retroactive rule of constitutional law that impacts his sentence. Here, that rule is Johnson 's invalidation of the ACCA's residual clause.

But whether Carrion can benefit from Johnson it is not readily apparent. The record does not reflect whether he was actually sentenced under the residual clause because the judge did not articulate which ACCA provision he was relying on to qualify Carrion's priors as violent felonies, so it is not clear whether Carrion's challenge is based on Johnson 's ruling as § 2255 requires. The parties agree that the judge adopted the probation office's pre-sentence investigation report, which simply concludes that Carrion qualified under one of the three subsections (not any specific one).²¹ Carrion's prior convictions are for robberies and armed assault. These offenses could plausibly have qualified as violent felonies in 2004 under either the force clause (because they involved threats of force) or the residual clause (because they otherwise posed danger to others). And because the residual clause was the broadest of the ACCA's clauses, it may be more likely that this was the clause that the sentencing judge relied on.²² The best I can do on this record, really, is guess whether the sentencing judge had the residual clause in mind when he determined that Carrion's prior convictions were violent felonies that required him to sentence this defendant to at least 15 years in prison.

The parties offer diverging views about what I should do when the record is unclear on this point. The government argues that Carrion must prove, based on the state of the law at the time of his sentencing, that the judge could not have applied the ACCA's enhancement under the enumerated-offenses or force clauses—both left untouched by Johnson . If so, Johnson is not truly implicated and Carrion has no new constitutional rule to unlock § 2255's door. Carrion agrees that whether Johnson is implicated depends on whether his priors qualify under the ACCA's still-valid clauses. But he argues that I must make that determination using the cases decided since his sentencing, under which it does not appear that he qualifies for ACCA enhancement. So I first tackle the question of which law I use to determine whether Johnson impacts Carrion's sentence and may serve as a basis for this successive§ 2255 motion: the law as it was when Carrion was sentenced—or as it stands today?

A. The threshold question: can Carrion raise a Johnson challenge under § 2255 when the sentencing judge did not expressly state that he relied on the residual clause?

Section 2255 permits a defendant to file a successive petition based on "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court."²³ Carrion argues that his motion is based on Johnson because its invalidation of the residual clause, coupled with recent case law indicating that his offenses no longer qualify under the other clauses, affords him relief. The government sees the proper question as whether Johnson by itself affords Carrion relief, and because Carrion's motion relies on additional, non-retroactive cases and not just Johnson , he cannot avail himself of § 2255. On this issue, the courts are divided.

1. Some courts conclude that if a defendant needs to rely on intervening, non-retroactive case law to advance his Johnson claim, then he has not met the requirements of § 2255.

A number of district and appellate courts have held that a court cannot look to current case law when determining whether the residual clause was implicated in a defendant's sentencing. They conclude that if a defendant needs intervening, non-retroactive case law to advance his Johnson claim, then he cannot avail himself of § 2255. These courts reason that how the defendant was actually sentenced matters. If the defendant cannot show, as a factual matter, that his sentencing judge would have been unable at the time of sentencing to use one of the ACCA's other clauses, he cannot meet his burden to show that the residual clause was implicated in his sentence and his motion is thus based on Johnson's invalidation of the residual clause.²⁴ These courts characterize motions like Carrion's as an improper attempt to use Johnson "as a portal to raise [other case law]-based claims about [the] ACCA's" other clauses²⁵ because, without the benefit of intervening case law about the force and enumerated crimes clauses (which are clearly not retroactive), these defendants would have no grounds for relief.

For example, in Ziglar v. United States , a District of Alabama court explained that it does not matter whether, "if sentenced today, [the defendant] would not be ACCA eligible based upon the combined holdings of Johnson and" other recent case law; all that matters is whether the defendant was ACCA-eligible based on the case law in existence at the time of the defendant's sentencing.²⁶ The Eleventh Circuit similarly opined in In re Hires that "what matters here is...