United States v. Le

UNITED STATES OF AMERICA, Plaintiff/Respondent, v. HOANG AI LE, Defendant/Movant.

No. 2:99-cr-000433 WBS AC

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

August 8, 2019

FINDINGS AND RECOMMENDATIONS

Movant, a federal prisoner, brings a challenge to his sentence under 28 U.S.C. § 2255. ECF No. 1760. Movant seeks relief pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015) (holding 18 U.S.C. § 924(e), the residual clause of the Armed Career Criminal Act (ACCA), facially void for vagueness). Id. The United States opposes the motion, ECF No. 1785, and movant has replied, ECF No. 1788. Supplemental briefs were filed addressing the impact of Sessions v. Dimaya, 138 S. Ct. 1204 (2017). ECF Nos. 1790, 1795.

I. BACKGROUND

Mr. Le and six co-defendants were charged by indictment on October 1, 1999, with charges arising from four robberies. ECF No. 1. On December 14, 2007, Le was found guilty by a jury of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 8) and using a firearm to commit a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Count 9). ECF No. 1061. He was acquitted on three other counts. On March 1, 2010, the court sentenced Le to a total term of 340 months. ECF No. 1408.

Mr. Le's appeal was consolidated with those of the three other defendants who were tried in 2007. ECF No. 1623. The appeal was decided in 2015. ECF Nos. 1623, 1624. Le's conviction and sentence were upheld; other defendants' sentences were reversed in part. ECF No. 1623. On remand, Le's co-defendants moved for dismissal of all counts charged under § 924(c), pursuant to Johnson, supra. The motions were granted, ECF Nos. 1659 (as amended, ECF No. 1668), 1698.

Mr. Le also moved to dismiss the § 924(c) count on which he had been convicted, in light of Johnson. ECF No. 1692. The court held that it had no jurisdiction over the motion, because Le's sentence was outside the scope of the mandate and there was accordingly no case pending against him in district court. ECF No. 1696. The court expressed no opinion on the merits of Le's Johnson claim, and noted that it might be presented in a habeas petition. Id. at 2.

Mr. Le appealed. ECF No. 1699. During the pendency of his appeal, Le filed two pro se motions under 28 U.S.C. § 2255, both asserting the Johnson claim. ECF Nos. 1706, 1717. Those motions were denied without prejudice to renewal by counsel on conclusion of the appeal. ECF No. 1741 (Findings and Recommendations), No. 1750 (order adopting F&Rs). The appeal was thereafter voluntarily dismissed, ECF No. 1762, and this motion followed.

II. THE MOTION

Mr. Le contends that his conviction for using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c), is invalid after Johnson, supra, which held that the residual clause definition of "crime of violence" in the Armed Career Criminal Act, § 924(e)(2)(B)(ii), is void for vagueness under the Due Process Clause.

III. PERTINENT STATUTORY FRAMEWORK

Title 18 U.S.C. § 924(c) provides in pertinent part as follows:

(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the UnitedStates, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime--

(i) be sentenced to a term of imprisonment of not less than 5 years. . .

18 U.S.C. § 924(c)(1)(A) (emphasis added).

The term "crime of violence" is defined as follows:

(3) For purposes of this subsection the term "crime of violence" means 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 first clause, § 924(c)(3)(A), is known as the "force" or "elements" clause, and § 924(c)(3)(B) is known as the "residual clause."

IV. ANALYSIS

A. Johnson and Dimaya

In Johnson v. United States, the U.S. Supreme Court held that the residual clause of the Armed Career Criminals Act is void for vagueness. The provision at issue had required sentences of 15 years to life sentence in 18 U.S.C. § 922(g) felon-in-possession cases where the defendant had been convicted of three or more prior "violent felonies" - defined as felonies involving "conduct that presents a serious potential risk of physical injury to another." Johnson, 135 S. Ct. at 2255-56. The Supreme Court found that this definition of violent felony violates due process when used to require an enhanced sentence, because it does not give sufficient notice to defendants of the conduct that will support the enhancement, and because it invites arbitrary enforcement by judges. Id. at 2557. Only the ACCA's residual clause was held unconstitutional; the statute's alternate definitions of "violent felonies," including the definition based on the elements of the offense, remain in force. Id. at 2563. Johnson constitutes a new rule of substantive criminal procedure that applies retroactively to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016).

In Sessions v. Dimaya, 138 S. Ct. 1204 (2017), which affirmed the judgment of the Ninth Circuit, the Supreme Court applied Johnson to invalidate the Immigration and Nationality Act's incorporation of 18 U.S.C. § 16(b)'s residual clause. That statutory language defines a "crime of violence" as a felony "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." Dimaya, 138 S. Ct. at 1211. The Court found that because this language is impermissibly vague under Johnson, it cannot be incorporated into the INA's definition of an "aggravated felony" for purposes of mandatory deportation. Id. at 1223. Like Johnson, Dimaya involved a prior conviction that had been found to qualify as a crime of violence under the residual clause and not on the basis that an element of the offense involves the use of force. Id. at 1211 (immigration court held pursuant to residual clause that first-degree burglary is a crime of violence because it "carries a substantial risk of the use of force").

B. Pertinent Ninth Circuit Law Prior to Johnson

In 1993, the Ninth Circuit held that conspiracy to commit Hobbs Act robbery constituted a crime of violence under § 924(c)'s residual clause. United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) ("We do not address whether conspiracy to rob in violation of § 1951 is a 'crime of violence' under subsection (A) of § 924(c)(3) because we conclude that it is a 'crime of violence' under subsection (B)."). The Mendez court held that Hobbs Act conspiracy "violates § 924(c)(1) because by its nature it involves a substantial risk that physical force may be used against a person or property in the course of committing the offense." Id. at 1489.

The Supreme Court has now held that it violates due process to impose fixed sentencing consequences for a "violent crime" defined in these terms. See Dimaya, 138 S. Ct. at 1211, 1216 (impermissibly vague under Johnson to define "crime of violence" as a felony "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.").

C. Law of the Case Doctrine

As previously noted, the Hon. William B. Shubb granted motions to dismiss brought by three other defendants in this case, who were before the district court on remand following directappeal. See ECF No. 1659 (order granting motions to dismiss § 924(c) counts against Lattanaphom and Huynh), as amended by ECF No. 1668; ECF No. 1698 (order granting motion to dismiss § 924(c) counts against Luong). Judge Shubb dismissed the § 924(c) counts against those defendants pursuant to Johnson. Id. Mr. Le argues that these rulings must be applied to him under the law of the case doctrine. The government, on the other hand, contends that the law of the case doctrine requires denial of Le's § 2255 motion because the Ninth Circuit ruled on direct appeal that his § 924(c) conviction was properly supported by a qualifying felony.

The law of the case doctrine generally precludes a court from reconsidering an issue that has been previously decided by the same court, or a higher court in the same case. United States v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997). For the doctrine to apply, the issue in question must have been decided either explicitly or by necessary implication in the prior disposition. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.), cert. denied, 508 U.S. 951 (1993). The doctrine is not a limitation on the court's power, but a guide to discretion. Arizona v. California, 460 U.S. 605, 618 (1983). It does not apply where there has been an intervening change in law. Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002).

The court is unpersuaded by the government's law of the case argument. The government relies on appellate disposition of a challenge to life sentences that were imposed on Count 3. ECF No. 1785 at 21. Le was acquitted on Count 3, which alleged death caused by use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(i)(1) & (2).¹ The government contends that the decision on appeal establishes as law of the case that a qualifying predicate offense need not be charged in order to support a § 924 gun count, it need only be proved. ECF No....