Pikyavit v. United States, Crim. Case No. 2:06–cr–407–PGC
| Decision Date | 06 April 2017 |
| Docket Number | Civ. Case No. 2:16–cv–00729–JNP,Crim. Case No. 2:06–cr–407–PGC |
| Citation | 274 F.Supp.3d 1258 |
| Parties | Russell PIKYAVIT, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — District of Utah |
Benjamin C. McMurray, Utah Federal Defender Office, Salt Lake City, UT, for Petitioner.
Jacob J. Strain, US Attorney's Office, Salt Lake City, UT, for Respondent.
Before the court is Petitioner Russell Pikyavit's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. (Docket No. 1).
Petitioner is currently incarcerated in federal prison. In 2007, Petitioner was convicted of being a felon in possession of ammunition under 18 U.S.C. § 922(g)(1) and sentenced to 180 months of incarceration. Though the offense itself carried a penalty of at most 120 months in prison, the court enhanced Petitioner's sentence by sixty months pursuant to the Armed Career Criminal Act (ACCA), which provides a mandatory minimum of fifteen years for any individual convicted under § 922(g)(1) who also has three previous convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another." Id. § 924(e)(1). Court documents did not indicate which of Petitioner's prior convictions justified the sentence, but his criminal history included at least one conviction for distribution of a controlled substance, two convictions for assault by prisoner, and a conviction for burglary.
On June 26, 2015, after Petitioner had served approximately nine years of his fifteen-year sentence, the Supreme Court decided Johnson v. United States (Johnson II) , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The Court there held that the so-called residual clause of § 924(e) of the ACCA was unconstitutionally vague. Id. at 2557. The next year, the Court held that the Johnson II decision had announced a substantive rule that must be applied retroactively on collateral review of sentences imposed under the unconstitutional residual clause. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016).
On June 27, 2016, Petitioner filed this Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255(a),1 arguing that Johnson II rendered his sentence under the ACCA unconstitutional. (Docket No. 1). The government opposed Petitioner's Motion in a memorandum filed September 14, 2016, arguing that Petitioner's sentencing enhancement under the ACCA was not affected by Johnson II because his convictions for assault by prisoner were still categorically violent felonies under the Act. (Docket No. 7). Petitioner filed a reply to the government's opposition memorandum on November 14, 2016. (Docket No. 15).2 The court heard oral argument on the Motion on January 10, 2017, and now renders a decision under jurisdiction granted by § 2255(a).
Petitioner asks this court to vacate and correct his 180–month sentence by striking the sixty-month enhancement applied to his sentence pursuant to the ACCA. The ACCA requires a fifteen-year mandatory minimum sentence when a defendant charged under 18 U.S.C. § 922(g) has a criminal history that includes "three previous convictions ... for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1) ; see also United States v. Harris , 844 F.3d 1260, 1262 (10th Cir. 2017) . Under the ACCA, a "violent felony" is defined as "any crime punishable by imprisonment for a term exceeding one year," that falls under one of three categorical clauses listed under § 924(e)(2)(B). See id. § 924(e)(1)–(2). First, the "elements" or "force" clause indicates that a crime of conviction qualifies as a violent felony if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i). Next, the "enumerated-offenses" clause outlines certain generic offenses that are categorically violent felonies under the ACCA, such as "burglary, arson, ... extortion, [or another crime which] involves the use of explosives." Id. § 924(e)(2)(B)(ii). Finally, the "residual" clause defines as a violent felony any crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. As described above, the Supreme Court recently held that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process." Johnson II , 135 S.Ct. at 2563. The Court later held that this decision applied retroactively to sentences imposed pursuant to the residual clause. Welch , 136 S.Ct. at 1265.
Petitioner argues that, after Johnson II , he does not have three convictions that would qualify as a violent felony or serious drug crime, invalidating his previous sentencing enhancement under the ACCA. Petitioner's criminal history includes convictions in Utah state court for several different felonies that could have necessitated a sentencing enhancement under § 924(e)(1) prior to Johnson II : a conviction for burglary in 1983, a conviction for assault by prisoner in 1996, a conviction for distribution of a controlled substance in 1997, and another conviction for assault by prisoner in 2000. Neither party disputes that Petitioner's conviction for distribution of a controlled substance qualifies as a "serious drug offense" under § 924(e)(1). Instead, Petitioner and the government devote the bulk of their arguments to the two assault by prisoner convictions, rightly concluding that the status of these convictions as violent felonies under § 924(e)(1) is dispositive of Petitioner's motion.3
At the time of Petitioner's conviction,4 Utah's assault by prisoner statute provided:
Any prisoner who commits assault, intending to cause bodily injury, is guilty of a felony in the third degree.
UTAH CODE § 76–5–102.5 (1995). An element of this offense is the commission of an assault. At the time of conviction,5 assault was defined as:
(a) [A]n attempt, with unlawful force or violence, to do bodily injury to another; (b) a threat, accompanied by a show of immediate force or violence, to do bodily injury to another; or (c) an act committed with unlawful force or violence, that causes or creates a substantial risk of bodily injury to another.
Id. § 76–5–102 (1995). Additionally, "bodily injury" was defined in the Utah Code as "physical pain, illness, or any impairment of physical condition." Id. § 76–5–101 (1995).
Petitioner argues that his previous convictions under the assault by prisoner statute could only qualify as violent felonies under the unconstitutional residual clause and, as a result, his enhanced 180–month sentence must be vacated. The government counters that Utah's assault by prisoner statute "has as an element the use, attempted use, or threatened use of physical force against the person of another," see 18 U.S.C. § 924(e)(2)(B)(i), and therefore Petitioner's convictions for that crime properly qualify as violent felonies under the elements clause. Both parties acknowledge that sentences imposed pursuant to the residual clause are unconstitutional and assault by prisoner is not an enumerated offense under § 924(e)(2)(B)(ii). As a result, Petitioner's sentencing enhancement may survive only if, as the government argues, assault by prisoner may properly be categorized as a violent felony under the elements clause. See Harris , 844 F.3d at 1262–63 (). Therefore, the question before the court is whether Utah's assault by prisoner statute "has as an element the use, attempted use, or threatened use of physical force against the person of another" as required by the elements clause. See § 924(e)(2)(B)(i).
The Tenth Circuit has previously held, in an unpublished opinion, that Utah's assault by prisoner statute is categorically a violent felony under the ACCA because it requires the " ‘commission of assault,’ which by definition requires the use of force." United States v. Tahguv , 264 Fed.Appx. 719, 723 (10th Cir. 2008) (unpublished) (quoting UTAH CODE § 76–5–102.5 ). Adopting this reasoning, two other courts in this district have recently concluded that assault by prisoner is categorically a violent felony under the elements clause. See Montoya v. United States , No. 1:16-cv-00084-TC, 2016 WL 6810727 at *7–8 (D. Utah Nov. 17, 2016) (unpublished); Ama v. United States , 149 F.Supp.3d 1323, 1328 (D. Utah 2016), appeal docketed , No. 16–4039 (10th Cir. Mar. 29, 2016). Most recently, another court in this district held that assault by prisoner is not categorically a violent felony because it does not require the use or threatened use of physical force. Horrocks v. United States , No. 2:16–cv–00667–DS (D. Utah Jan. 9, 2017) (), appeal docketed , No. 17–4017 (10th Cir. Feb. 9, 2017). Petitioner correctly asserts that none of these cases are binding on this court. See DUCivR 7–2(a) (); Camreta v. Greene , 563 U.S. 692, 709 n.7, 131 S.Ct. 2020, 179 L.Ed.2d 1118 (2011) (). He also insists that none of the cases holding that assault by prisoner is categorically a violent felony have clearly addressed the specific substantive arguments he has raised. Thus, he requests that this court independently evaluate whether Utah's assault...
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