United States v. Hammond

354 F.Supp.3d 28

UNITED STATES of America,

v.Paul Edward HAMMOND, Defendant.

Criminal Action No. 02-294 (BAH)

United States District Court, District of Columbia.

Signed December 7, 2018

SN Beth Menzer, U.S. Attorneys, Washington, DC, for Plaintiff.

Shawn Franklin Moore, Federal Public Defender for D.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief JudgeIn 2003, the defendant Paul Hammond pleaded guilty to possessing a firearm after having a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1), and to armed robbery, in violation of D.C. Code §§ 22-2901, 22-3202. He was subsequently sentenced to 115 months' imprisonment on the firearm conviction and 240 months' imprisonment on the armed robbery conviction, to be served consecutively. Judgment in a Criminal Case ("Judgment") at 2, ECF No. 25. Under the United States Sentencing Guidelines ("Guidelines") that governed Hammond's sentence for the federal firearm conviction, his Guidelines sentencing range for the firearm conviction was 92 to 115 months' imprisonment, based on his two prior convictions for a "crime of violence." See Judgment, Statement of Reasons ("SOR"), at 6, ECF No. 25; see also U.S.S.G. § 2K2.1(a)(2) (2003).¹

Since Hammond's sentencing, the Supreme Court has held unconstitutional laws that enhance criminal sentences due to a defendant's prior conviction for a crime of violence, as defined by the so-called "residual clause." See Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Hammond claims that because he was sentenced at a time when the Guidelines had the force of law, and because his sentence was enhanced through application of the residual clause, he is entitled to resentencing on his firearm conviction. Thus, Hammond filed a motion, under 28 U.S.C. § 2255, asking that his 115-month sentence be vacated and that he be resentenced under the current Guidelines. See Def.'s Mot. Vacate, Set Aside, or Correct Sentence ("Def.'s § 2255 Mot."), ECF No. 24, as supplemented, Def.'s Supp. Mot. Vacate ("Def.'s Supp. § 2255 Mot."), ECF No. 27.

To prevail, Hammond must first overcome two procedural barriers imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. 104-132, 110 Stat. 1214, and then establish that the Supreme Court itself has recognized, and made retroactive, a right not to have a criminal sentence enhanced pursuant to the mandatory Guidelines' residual clause. Hamond has made those showings. Second, Hammond must establish that without the residual clause, his prior convictions do not qualify as crimes of violence. Hammond fails at this second stage because the prior convictions that served as the basis for his enhanced sentence constitute crimes of violence under the Guidelines' so-called "elements clause." Thus, Hammond's § 2255 motion is denied.

I. BACKGROUND

On April 15, 2002, a District of Columbia Metropolitan Police Department ("MPD") officer learned of a man at the intersection of Florida Avenue and V Street, N.W., Washington, D.C., wielding a handgun. Presentence Report ("PSR") ¶¶ 12–13, ECF No. 36. The officer approached a man at that intersection, later identified as Hammond, who lifted his shirt, and the officer observed a handgun. Id. ¶ 13. Hammond was arrested. Id. Shortly thereafter, MPD discovered that two men had just committed an armed robbery at a nearby clothing store. Id. ¶¶ 14–15. The investigation disclosed that Hammond was one of the two and that during the robbery Hammond had struck a victim with a clothing rack, placed a gun to the victim's head, and pulled the trigger twice. Id. The gun did not fire and Hammond fled. Id.

As noted, Hammond pleaded guilty, in August 2003, to charges of unlawful possession of a firearm by a person with a prior felony conviction, in violation of 18 U.S.C. § 922(g)(1), and armed robbery, in violation of D.C. Code § 22-2901 (now codified at D.C. Code § 22-2801 ) and D.C. Code § 22-3202. See Plea Agreement at 1, ECF No. 17; see also Judgment at 1.

At Hammond's sentencing, in December 2003, the presiding judge generally adopted "the factual findings and guideline application in the [PSR]." Judgment, SOR, at 6. According to the PSR, Hammond had at the time of sentencing, four adult criminal cases resulting in convictions, including: (1) a Maryland conviction for shoplifting and possession of drug paraphernalia, PSR ¶ 33; (2) a D.C. Superior Court conviction for petty larceny and shoplifting, id. ¶ 34; (3) a federal conviction for bank robbery, id. ¶ 35; and (4) a Maryland conviction for robbery with a deadly weapon, id. ¶ 36. Based on the latter two convictions, in conjunction with Hammond having committed the federal firearm offense while under a criminal sentence, Hammond's criminal history category under the Guidelines was IV. Id. ¶¶ 37–39.

The PSR determined that Hammond's base offense level, under U.S.S.G. § 2K2.1(a)(2) (2003), was 24, PSR ¶ 22, which reflected that Hammond had "committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense," U.S.S.G. § 2K2.1(a)(2) (2003).² This base offense level was increased by four levels, due to Hammond's possession of a gun in connection with another felony, PSR ¶ 23 (citing U.S.S.G. § 2K2.1(b)(5) (2003) ), and reduced by two levels for his acceptance of responsibility, PSR ¶ 29 (citing U.S.S.G. § 3E1.1(a) (2003) ). This resulted in a total offense level for the firearm conviction of 26. PSR ¶ 30. Hammond's criminal history category of IV and offense level of 26 resulted in a Guidelines range of 92 to 115 months' imprisonment. U.S.S.G. Ch. 5 Pt. A (2003) ; see also Judgment, SOR, at 6.

As used in U.S.S.G. § 2K2.1 at the time of Hammond's sentencing, " ‘[c]rime of violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2." U.S.S.G. § 2K2.1 cmt. n. 5 (2003). In turn, § 4B1.2(a) of the Guidelines version under which Hammond was sentenced defined "crime of violence" in three ways. First, under the "elements clause," crimes of violence included any felony that "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 4B1.2(a)(1) (2003). Second, under the "enumerated-felonies clause," crimes of violence included "burglary of a dwelling, arson, or extortion" or a felony that "involves use of explosives." Id. § 4B1.2(a)(2) (2003). Third, under the "residual clause," crimes of violence included any felony that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id.³

At the time of Hammond's sentencing, Congress's instruction that "court[s] shall impose a sentence of the kind, and within the range, referred to [in the Guidelines]," 18 U.S.C. § 3553(b)(1), was still effective. Thus, Hammond was sentenced on his federal firearm conviction to a within Guidelines sentence of 115 months' imprisonment, to run consecutively with a 240-month sentence on the armed robbery conviction. Judgment at 2. According to the Bureau of Prisons, Hammond's scheduled release date is January 22, 2028. See Find an Inmate, FEDERAL BUREAU OF PRISONS , https://www.bop.gov/inmateloc/ (search "Paul Edward Hammond").

Hammond did not appeal his convictions or sentence.

In 2005, federal sentencing was affected by the first legal shift at the heart of this case. Over the preceding five years, the Supreme Court had ruled, in Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), that the Sixth Amendment protects a defendant's right to have all facts, other than a prior conviction, that the law makes essential to punishment, proved beyond a reasonable doubt. Then, in January 2005, the Supreme Court held that, because the mandatory Guidelines required judges to increase sentences based on facts found by only a preponderance of the evidence, the mandatory Guidelines suffered from the same constitutional infirmity identified in Apprendi and Blakely. United States v. Booker , 543 U.S. 220, 231–34, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). As a remedy, the provision making the Guidelines mandatory was severed. Id. at 245, 125 S.Ct. 738 (invalidating 18 U.S.C. § 3553(b)(1) ). Thus, since Booker , the Guidelines have been advisory.

Ten years later, the Supreme Court, in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), held that the residual clause in the Armed Career Criminal Act of 1984 ("ACCA"), Pub. L. 98-473, 98 Stat. 1837, was unconstitutionally vague. Under the ACCA, a defendant convicted of a federal firearm offense, under 18 U.S.C. § 922(g), is subject to an enhanced sentence if the defendant has three or more prior convictions for "a violent felony or a serious drug offense, or both." See 18 U.S.C. § 924(e)(1). Pertinent here, § 924(e)(2)(B) defines "violent felony" in the same way the 2003 version of the Guidelines defined "crime of violence": first, in the elements clause, as having "as an element the use, attempted use, or threatened use of physical force against the person or another," 18 U.S.C. § 924(e)(2)(B)(i) ; second, in the enumerated-felonies clause, as being one of several listed felonies, id. § 924(e)(2)(B)(ii) ; and, third, in the residual clause, as involving "conduct that presents a serious potential risk of physical injury to another," id.⁴ In Johnson , which considered a vagueness challenge only to the residual clause's definition of violent felony, the Court ruled that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law." 135 S.Ct. at 2557. "Two features of the residual clause conspire[d] to make it...