Dota v. United States, Case No. 8:17-CV-00354-JLS

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtJosephine L. Staton, United States District Judge
Citation368 F.Supp.3d 1354
Parties Richard Marion DOTA, Petitioner, v. UNITED STATES of America, Respondent.
Decision Date30 October 2018
Docket NumberCase No. 8:17-CV-00354-JLS, Case No. 8:92-CR-00005-JLS-2

368 F.Supp.3d 1354

Richard Marion DOTA, Petitioner,
v.
UNITED STATES of America, Respondent.

Case No. 8:17-CV-00354-JLS
Case No. 8:92-CR-00005-JLS-2

United States District Court, C.D. California.

Signed October 30, 2018


368 F.Supp.3d 1355

Alyssa D. Bell, Cohen Williams LLP, Brianna Fuller Mircheff, Federal Public Defenders Office, Los Angeles, CA, for Petitioner.

Katherine A. Rykken, AUSA - Office of US Attorney General Crimes Section, Los Angeles, CA, Assistant 2241-2255 US Attorney SA-CR, AUSA - Office of US Attorney, Santa Ana, CA, for Respondent.

ORDER GRANTING MOTION TO VACATE, SET ASIDE, OR CORRECT FEDERAL SENTENCE (CV Doc. 1; CR Doc. 390)

ORDER AMENDING JUDGMENT AND COMMITMENT ORDER

Josephine L. Staton, United States District Judge

Just over 25 years ago, in December 1992, Petitioner was sentenced to a term of

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imprisonment of 35 years (420 months), for his taking part in a murder-for-hire conspiracy. A Supreme Court case decided in April 2018 necessitates reexamination of whether Petitioner was sentenced pursuant to an unconstitutionally vague and/or inapplicable provision of federal criminal law. As explained below, this new case law requires invalidation of 60 months of Petitioner's 420-month sentence of imprisonment.

This matter is before the Court on Petitioner's Motion to Vacate, Set Aside, or Correct Federal Sentence. (Doc. 1.) Petitioner moves to vacate or modify the federal sentence imposed upon him by this Court on December 18, 1992 in United States v. Richard Marion Dota , SACR 92-00005-JLS-2. The Government filed an Opposition brief. (Doc. 20.) Petitioner filed a Reply brief and supplemental briefing. (Docs. 23-26.)

As set forth below, the Court GRANTS the Motion.

I. Motion to Vacate or Correct Federal Sentence

Petitioner moves pursuant to 28 U.S.C. § 2255, which permits federal prisoners who "claim[ ] the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States" to file a motion "to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). The motion must be filed in "the court [that] imposed the sentence." Id.

As a matter of procedure, the Court is required to review the motion to determine whether the moving party may be entitled to relief. See Rule 4(b) of the Rules Governing Section 2255 Proceedings, 28 U.S.C. foll. § 2255. If, upon the Court's initial review, "it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." Id. Otherwise, the Court must order the United States to respond to the motion. Id. Here, the Court set a briefing schedule as to the merits of Petitioner's motion and, after the Supreme Court issued its decision in Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), granted leave to file supplemental briefing. The issues before the Court are fully briefed, and the Court considers them now.

II. Petitioner's Sentence

The murder-for-hire plot is summarized in the Presentence Investigation Report ("PSR"). (See Doc. 7 (sealed), PSR ¶¶ 25-45.) Briefly, co-Defendant and business owner Julius Frederick Schill sought Defendant's assistance in killing Wilbur Constable, the fiancé of Schill's secretary Asher, a woman whom Schill wished to pursue romantically. Defendant traveled from Las Vegas to Tustin, California, met with Schill, cashed a check given to him by Schill, and then met with another man (co-Defendant Yoon) in order to outsource the "hit" to Yoon. Defendant went back to Las Vegas, but returned shortly thereafter to again meet with Yoon to help plan the "hit." The plan included damaging Constable's car, leaving a business card with the information of the "responsible party," and then luring the unsuspecting Constable to a parking lot behind an office park complex, ostensibly so that the responsible party could pay him for the damage to his car. Although suspicious, Constable went to the parking lot. Constable was himself armed with a handgun, but he was unable to successfully defend himself. Yoon and two others (also co-Defendants) met Constable in the parking lot, beat him with baseball bats, shot him in the back of the head, and left him for dead. Yoon, believing

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Constable was dead, reported to Defendant by telephone that he had "hit a homerun." Surprisingly, Constable survived the assault. Unsurprisingly, he was severely injured and hospitalized. When Schill learned from Asher that Constable was still alive, he called Defendant in Las Vegas, who then called Yoon to tell him Constable had survived. In formulating a plan to finish the job, Yoon again telephoned Defendant. The revised plan fell through, and the present prosecution eventually ensued.

On June 24, 1992, after a twenty-one day jury trial, Petitioner was convicted on Counts 1 through 9 of the Second Superseding Indictment. (See CR Doc. 262.) Specifically, Petitioner was convicted of conspiracy to commit murder-for-hire (Count 1), use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A) (Count 2), and seven counts of use of interstate commerce facilities related to murder-for-hire (Counts 3 through 9). (See PSR ¶¶ 9-19.)

On December 18, 1992, the Court held Petitioner's sentencing hearing. (See CR Doc. 303.)1 The Court sentenced Petitioner to 240 months imprisonment on Count 3; 120 months on each of Counts 4 through 9 (to be served concurrently with each other but consecutive to the term imposed on Count 3); 60 months on Count 1 (to be served concurrently with the terms imposed as to Count 3 and Counts 4 through 9); and 60 months on Count 2 (to be served consecutively to all other Counts). (Id. ) The Court also sentenced Petitioner to 3 years of supervised release. (Id. )

III. Statutory Sentencing Provision

The present Motion addresses the sentence imposed for Count 2. By statute, there is a five-year mandatory prison sentence as to Count 2 that must be imposed consecutively to any other sentence of imprisonment. Specifically, Petitioner was in 1992 convicted of use of a firearm during the commission of a "crime of violence" in violation of 18 U.S.C. § 924(c)(1), which in relevant part provides:2

(c)(1)(A) [A]ny person who, during and in relation to any crime of violence ... 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). The mandatory minimum prison sentence imposed for this crime must be served consecutively to any other term of imprisonment. 18 U.S.C. § 924(c)(1)(D)(ii).

The statute itself defines "crime of violence" in two ways:

(c) ... (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)(A)-(B). The first clause, clause (A), is referred to as the "elements clause" or the "force clause,"

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while the second clause, clause (B), is referred to as the "residual clause." See United States v. Collins , No. 16-CV-03345-SI, 2018 WL 368881, at *3 (N.D. Cal. Jan. 11, 2018) ; McCracken v. United States , No. CR 06-00497-GHK, 2017 WL 9676012, at *1 (C.D. Cal. July 27, 2017).

As explained below, recent Supreme Court case law establishes that the residual clause is unconstitutionally vague. Therefore, unless Petitioner's offense also meets the "crime of violence" definition under the elements clause, his conviction on Count 2 is invalid and must be vacated. The Court first discusses the unconstitutionality of the residual clause and thereafter considers whether Petitioner's offense meets the definition of a "crime of violence" under the elements clause.

IV. Residual Clause

In Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court invalidated a similar residual clause defining a "violent felony" under the Armed Career Criminal Act of 1984 ("ACCA"). The ACCA applies a sentencing enhancement when an offender has three convictions for a "violent felony." 18 U.S.C. § 924(e)(1). The residual clause of the ACCA defined a "violent felony" as including, inter alia , felonies that "otherwise involve[ ] conduct that present[ ] a serious risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii) ; Johnson , 135 S.Ct. at 2555-56. The Supreme Court held that this residual clause is unconstitutionally vague. Id. at 2563.

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