Gilbert v. United States
| Decision Date | 23 June 2016 |
| Docket Number | CASE NO. C15-1855 JCC,CASE NO. CR12-0237 JCC |
| Court | U.S. District Court — Western District of Washington |
| Parties | RUCHELL GILBERT, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
THE HONORABLE JOHN C. COUGHENOUR
This matter comes before this Court on Petitioner Ruchell Gilbert's motion to vacate, set aside, or correct his sentence (Dkt. No. 1). Having thoroughly considered the parties' briefing and the relevant record, this Court finds oral argument unnecessary and hereby GRANTS the motion for the reasons explained herein.
On April 8, 2014, this Court sentenced Petitioner to 130 months of imprisonment after he pleaded guilty to one count of Conspiracy to Distribute Controlled Substances in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846, and one count of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). United States v. Ruchell Gilbert, Case No. CR12-0237-JCC, Dkt. No. 806 at 1-2 (W.D. Wash. 2014) ("Gilbert I"). In its Statement of Reasons, this Court adopted the Presentence Investigation Report "without change," Gilbert I, Dkt. No. 940 at 1, and therefore found that Petitioner was a "career offender" under USSG § 4B1.1(a) because he had been previously convicted of two "crimes of violence": Robbery Second Degree and Attempting to Elude a Pursuing Police Vehicle. Id., Dkt. No. 790 at 9, 22-23. As a career offender, Petitioner's total offense level was 29, resulting in a Guidelines range of 151-188 months. Id., Dkt. No. 790 at 18. Had Petitioner not been found a career offender, his total adjusted offense level of 26 and criminal history category of IV would have resulted in a Guidelines range of 120-150 months. Id. at 20. In addition, he would have been eligible for a two-level downward adjustment, which would have resulted in a Guidelines range of 100-125 months. Id.
Petitioner's motion to vacate arrives in the wake of Johnson v. United States, 135 S. Ct. 2551, 2557 (2015). In Johnson, the Supreme Court ruled on a section of the Armed Career Criminal Act known as the "residual clause," which provided a definition of "violent felony." Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces a mandatory minimum sentence of 15 years if he has three prior convictions for "violent felonies." 18 U.S.C. § 924(e)(1). The ACCA residual clause provided that a violent felony was one that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). In Johnson, the Supreme Court held that this clause was "unconstitutionally vague." 135 S. Ct. 2557. In doing so, the Court necessarily found the clause "vague in all its applications," id. at 2561, and concluded that "[i]ncreasing a defendant's sentence under the clause denies due process of law." Id. at 2557. Recently, in Welch v. United States, the Court held that Johnson applies retroactively to defendants whose sentences were enhanced under the ACCA's residual clause. 136 S. Ct. 1257, 1265 (2016).
Although Petitioner was sentenced as a career offender under the Guidelines rather than under the ACCA, the Guidelines' definition of "crime of violence" includes a sentence identical to the ACCA residual clause. See USSG § 4B1.2(a)(2) ); see also United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013) (). The Government admits that Petitioner was sentenced as a career offender under the Guidelines residual clause, (Dkt. No 15 at 6), and "agrees that Johnson's vagueness holding applies" to this clause as well as to that of the ACCA. (Id. at 12.)
Petitioner now moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that it was unconstitutional under Johnson and Welch. In response, the Government argues that Petitioner's claim has been waived and is procedurally barred, and that even though Johnson's holding applies to the Guidelines residual clause, it does not do so retroactively.
Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:
[T]he sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack ....
28 U.S.C. § 2255. A petitioner seeking relief under § 2255 must file his motion with the one-year statute of limitations set forth in § 2255(f). That section provides that a motion is timely if it is filed within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." § 2255(f)(3).
The Supreme Court issued its opinion in Johnson on June 26, 2015. Petitioner filed his motion on November 19, 2015, less than one year later. (Dkt. No. 1.) The Government does not dispute that Petitioner's claim is timely.
The Government does, however, argue that Petitioner's claim has been waived. As part ofhis plea agreement, Petitioner expressly waived "any right to bring a collateral attack against the conviction and sentence... except as it may relate to the effectiveness of legal representation." Ruchell I, Dkt. No. 573 at 9. Nonetheless, because Petitioner's sentence was unconstitutional, his waiver is ineffective in this instance.
In United States v. Bibler, the Ninth Circuit held that an "appeal waiver will not apply if... the sentence violates the law." 495 F.3d 621, 624 (9th Cir. 2007). The court explained that a sentence violates the law if it "exceeds the permissible statutory penalty for the crime or violates the Constitution." Id. Because the Government admits that Petitioner was sentenced under a Guidelines clause that is unconstitutionally vague after Johnson, Petitioner has not waived his right to collaterally attack his sentence.
The Government next argues that Petitioner's claims are procedurally defaulted because he did not argue either at his sentencing or on appeal that the Guidelines residual clause was unconstitutional. "[T]o obtain collateral relief based on trial errors to which no contemporaneous objection was made, a convicted defendant must show both (1) 'cause' excusing his double procedural default, and (2) 'actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 167-68 (1982). Petitioner admits that he never contemporaneously objected that the Guidelines residual clause was unconstitutional, but argues that he can show cause and prejudice. (Dkt. No. 18 at 11.)
"[A] showing that the factual or legal basis for a claim was not reasonably available to counsel... would constitute cause" excusing a procedural default. Murray v. Carrier, 477 U.S. 478, 488 (1986). In Reed v. Ross, the Supreme Court held that a claim would "almost certainly" not be "reasonably available to counsel" if it is based on a Supreme Court decision that "explicitly overrule[d] one of our precedents." 468 U.S. 1, 17 (1984).
Petitioner's claim satisfies this standard because Johnson, the case on which Petitioner's claim is based, "explicitly overrule[d]" the holdings in Sykes v. United States, 564 U.S. 1 (2011),and James v. United States, 550 U.S. 192 (2007). Johnson, 134 S. Ct. at 2563. In Sykes and James, the Court held that the ACCA residual clause was constitutional. Id. at 2558-59. Indeed, in Sykes, the Court was confronted with a prior conviction roughly equivalent to Petitioner's: fleeing from law enforcement in a vehicle. Id. There the Court held that felony vehicle flight was a "violent felony" under the ACCA residual clause. Sykes, 564 U.S. at 15-16. Moreover, as Petitioner points out, the Government even cited Sykes in arguing that Petitioner's Attempting to Elude conviction was a crime of violence. (Dkt. No. 854 at 12-13.) Therefore, this Court finds that Petitioner has shown cause excusing his procedural default.
The Government does not contest that Petitioner suffered "actual prejudice" from this Court's reliance on the Guidelines residual clause. (Dkt. No. 15 at 9.) Prejudice is shown when "there is a reasonable probability" that the result of a petitioner's sentencing would have been different without the error to which the petitioner failed to object. Strickler v. Greene, 527 U.S. 263, 289 (1999). In sentencing Petitioner to 130 months of imprisonment, this Court adopted Probation's findings and recommendation of 155 to 188 months' imprisonment and then varied downward; had Petitioner not been deemed a career offender, Probation would have recommended 100 to 125 months. Gilbert I, Dkt. No. 790 at 18, 20. Therefore, it is highly probable that Petitioner's sentence would have been lower had this Court not erred in sentencing him under the Guidelines' residual clause.
Petitioner's claim is therefore not procedurally defaulted.
In Welch, the Supreme Court held that Johnson applies retroactively to defendants challenging an enhanced ACCA sentence on collateral review. But the Government argues that Welch has no bearing on the application of Johnson to Petitioner's collateral challenge to his enhanced Guidelines sentence. Although the Government admits that Johnson applies to the Guidelines residual clause, it...
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