United States v. Mayer

162 F.Supp.3d 1080

United States of America, Plaintiff,

v.Casey Dale Mayer, Defendant.

Case No. 6:05-cr-60072-AA

United States District Court, D. Oregon.

Signed February 5, 2016

Frank R. Papagni, Jr., United States Attorney's Office, Eugene, OR, for Plaintiff.

Casey Dale Mayer, Lompoc, CA, pro se.

Craig E. Weinerman, Office of the Federal Public Defender, Eugene, OR, for Defendant.

OPINION AND ORDER

AIKEN, Judge:

Defendant pled guilty to one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). At sentencing, I determined that defendant's prior convictions rendered him a career offender under the Armed Career Criminal Act (ACCA), and I imposed the mandatory-minimum sentence of fifteen years' imprisonment. See 18 U.S.C. § 924(e)(1). Defendant now moves to vacate and correct his sentence under 28 U.S.C. § 2255. Defendant argues that, pursuant to Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), his prior conviction for first-degree burglary of a dwelling no longer supports the ACCA sentencing enhancement. The government opposes the motion and contends that defendant's burglary conviction remains a viable, predicate offense under the ACCA.

On January 6, 2016, the court heard oral argument in this case and several others consolidated for purposes of argument. Ultimately, I agree with the government that first-degree burglary in Oregon generally should qualify as the violent felony of “burglary,” based on the legislative history of the ACCA and the seminal case interpreting it. See Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). However, given the Supreme Court's decision in Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013) and the Ninth Circuit rulings issued in its wake, I cannot find that first-degree burglary of a dwelling in Oregon is a qualifying offense for purposes of the ACCA sentencing enhancement. Accordingly, defendant's motion is granted.

DISCUSSION

A. The ACCA and Defendant's Prior Conviction for First-Degree Burglary

The ACCA mandates a fifteen-year minimum sentence in cases where a defendant convicted of a firearms offense has three prior convictions for “a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as an offense that: 1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; 2) “is burglary, arson, or extortion, [or] involves use of explosives”; or 3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B)(i)(ii). The last alternative has been referred to as the “residual clause”; it is a catch-all provision intended to encompass other offenses, similar to those enumerated above, which pose risks of violence or injury. Begay v. United States , 553 U.S. 137, 142–44, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Although the Supreme Court has upheld the residual clause in several cases, the Court in Johnson ultimately invalided it as unconstitutionally vague, finding that the clause “leaves grave uncertainty about how to estimate the risk posed by a crime” and “about how much risk it takes for a crime to qualify as a violent felony.” Johnson , 135 S.Ct. at 2557–58.¹ As a result, an ACCA violent felony must involve an element with some degree of force or constitute burglary, arson, extortion, or an explosives offense.

In this case, defendant's criminal history includes convictions for two drug offenses and first-degree burglary of a dwelling. At sentencing, while the parties essentially agreed that the drug convictions were “serious drug offenses” under the ACCA,² they disagreed as to whether first-degree burglary in Oregon qualified as a “violent felony.” Pursuant to Ninth Circuit precedent, I found that Oregon's first-degree burglary statute did not categorically match the ACCA offense of “burglary” as defined by the Supreme Court in Taylor . Transcript of Proceedings at 130-31 (July 13, 2007); see United States v. Grisel , 488 F.3d 844 (9th Cir.2007) (en banc); see also United States v. Wenner , 351 F.3d 969 (9th Cir.2003).

However, in light of then-existing Supreme Court precedent, I found that defendant's burglary conviction qualified as an offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another” under the residual clause. 18 U.S.C. § 924(e)(2)(B)(ii) ; Transcript of Proceedings at 132-34 (July 13, 2007); see James v. United States , 550 U.S. 192, 203, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (“The main risk of burglary arises not from the simple physical act of wrongfully entering onto another's property, but rather from the possibility of a face-to-face confrontation between the burglar and a third party—whether an occupant, a police officer, or a bystander—who comes to investigate.”). Accordingly, I imposed the mandatory minimum sentence of fifteen years. Defendant appealed, the Ninth Circuit affirmed, and defendant's petitions for rehearing were denied. United States v. Mayer , 560 F.3d 948, 954 (9th Cir.2009).

After the Supreme Court issued its decision in Descamps , defendant moved under § 2255 to vacate and correct his sentence. The motion was denied, and the denial was affirmed on appeal. Subsequently, after issuing its opinion in Johnson , the Supreme Court granted certiorari, vacated judgment on defendant's § 2255 motion, and remanded the case for further consideration in light of Johnson 's invalidation of the residual clause. See doc. 112.

The parties agree that defendant's § 2255 motion is properly before the court, because the basis on which I imposed sentence—the residual clause—was held unconstitutional pursuant to a “new” rule of constitutional law that was “previously unavailable” to defendant. See Gov't Consolidated Ans. at 11-12 (“The government waives any and all potentially applicable procedural barriers and the right to enforce collateral review waivers so that defendants can test the legality of their sentences.”). The parties also agree that that if defendant's first-degree burglary conviction is not otherwise a violent felony under the ACCA, he should be released from prison.

B. In the Ninth Circuit, First-Degree Burglary of a Dwelling Does Not Constitute a Violent Felony Under the ACCA.

Under Oregon law, “a person commits the crime of burglary in the second degree if the person enters or remains unlawfully in a building with intent to commit a crime therein.” Or. Rev. Stat. § 164.215. The offense constitutes first-degree burglary if “the building is a dwelling.” Id. § 164.225(1).³ Plainly, first-degree burglary of a dwelling does not involve “the use, attempted use, or threatened use of physical force.” 18 U.S.C. § 924(e)(2)(B)(i). Therefore, defendant's conviction must qualify as the enumerated offense of “burglary.” Id. § 924 (e)(2)(B)(ii).

The ACCA does not define burglary. In Taylor , the Supreme Court discussed the relevant legislative history and held that burglary under the ACCA means the equivalent of “generic burglary,” the elements of which are the “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Taylor , 495 U.S. at 599, 110 S.Ct. 2143. Taylor also delineated two methods courts may use to determine whether a defendant was convicted of an enumerated generic offense: the categorical and the modified-categorical approaches. Id. at 601–02, 110 S.Ct. 2143.⁴

Under the categorical approach, the court compares the offense of conviction to the elements of the generic offense; in this case, burglary. Id. at 602, 110 S.Ct. 2143 ; see also Descamps , 133 S.Ct. at 2281. A prior burglary conviction is a “categorical” match if “its statutory definition substantially corresponds to ‘generic’ burglary” by including “the basic elements” of the generic offense. Taylor , 495 U.S. at 599, 602, 110 S.Ct. 2143. However, if the statute of conviction defines burglary “more broadly” and criminalizes conduct beyond the elements of the generic offense, id. at 599, 110 S.Ct. 2143, “a conviction under that law cannot count [categorically] as an ACCA predicate, even if the defendant actually committed the offense in its generic form.” Descamps , 133 S.Ct. at 2283.

The court may proceed under the modified-categorical approach if the statute, though overbroad, provides alternatives that correspond with the elements of the generic offense. Descamps , 133 S.Ct. at 2281. In these cases, the sentencing court may “look beyond the statutory elements,” id. at 2284, and review a limited set of documents to determine whether the statutory alternative matching the generic offense formed the basis of the defendant's conviction. These documents may include the charging documents, jury instructions, plea agreement, and plea colloquy. Id. at 2281, 2284 ; Johnson v. United States , 559 U.S. 133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (Johnson I ); Shepard v. United States , 544 U.S. 13, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005) ; Taylor , 495 U.S. at 602, 110 S.Ct. 2143. Importantly, a sentencing court cannot use the modified categorical approach “to try to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.” Descamps , 133 S.Ct. at 2288. The focus is instead on whether the documents show that the elements of the generic offense were found by a jury or admitted by the defendant. Taylor , 495 U.S. at 602, 110 S.Ct. 2143 ; see also Shepard, 544 U.S. at 20–21, 125 S.Ct. 1254.

1. Categorical Approach

At first glance, Oregon's first-and second-degree burglary statutes categorically meet the elements of generic burglary; both statutes include elements of unlawfully entering or remaining in a building or structure with the intent to commit a crime. Taylor , 495 U.S. at 598, 110 S.Ct. 2143 (generic burglary is the “unlawful or unprivileged entry into, or remaining...