Rutling v. United States

• Decision Date: 31 October 2018
• Docket Number: Civ. Action No. 16-3275(RMB)
• Parties: JOSEPH RUTLING, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — District of New Jersey

JOSEPH RUTLING, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Civ. Action No. 16-3275(RMB)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY CAMDEN VICINAGE

October 31, 2018

NOT FOR PUBLICATION

OPINION

BUMB, United States District Judge

This matter comes before the Court on Petitioner Joseph Rutling's ("Petitioner") Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. ("Mot. to Vacate," ECF No. 1.) On September 16, 2016, this case was stayed pursuant to Standing Order 16-2.¹ On November 1, 2016, Petitioner filed a memorandum in support of his motion ("Petr's Mem.") On January 2, 2018, the Government filed an answer in opposition to the motion (Answer, ECF No. 11), and Petitioner filed a reply on January 19, 2018. (Petr's Reply, ECF No. 12.) For thereasons discussed below, it is not necessary to hold an evidentiary hearing and the motion to vacate is denied.

I. BACKGROUND

A. Procedural History

For purposes of this motion only, Respondent adopted the citation of facts and procedural background set forth in Petitioner's Memorandum of Law. (Answer, ECF No. 11 at 1.) On August 5, 2014, a criminal complaint was filed in this Court, charging Petitioner with conspiracy to traffic in firearms and unlawful possession of firearms. USA v. Rutling, 15cr111(RMB) (D.N.J.) (Compl., ECF No. 1.) Petitioner was arrested on August 26, 2014. An information was filed, charging Petitioner with one count of conspiracy to engage in unlicensed dealing in firearms, in violation of 18 U.S.C. § 371, and one count of unlawful possession of firearms, in violation of 18 U.S.C. § 922(a)(1)(A). (Information, ECF No. 18.)

On March 6, 2015, Petitioner entered a guilty plea to both counts of the information, in accordance with the terms of a written plea agreement dated January 13, 2015. (Plea Agreement, ECF No. 21.) Schedule A to the Plea Agreement, Stipulation ¶3 provides:

The applicable guideline for Count One of the Information is U.S.S.G. § 2K2.1. The parties agree that: (A) the offense involved a firearm that is described in 26 § U.S.C. § 5845(a) (the National Firearms Act) (specifically theIzhmash, Model SPR 453 shotgun, bearing a defaced serial number (determined to be 0815353256R)); and (B) the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions for crimes of violence or controlled substance offenses. Therefore, the Base Offense Level is 26, pursuant to U.S.S.G. § 2K2.1(a)(1).

USA v. Rutling, 15cr111(RMB) (D.N.J.) (Plea Agreement at 7, ECF No. 21.) The Court discussed the stipulations and the sentencing guidelines with Petitioner at the plea hearing. (Petr's Mem., Ex. B, Plea Hearing Transcript at 19-26, ECF No. 5-1.)

According to the PSR, the base offense level for Count One was 26, pursuant to U.S.S.G. § 2K2.1. (Petr's Mem., ECF No. 5 at 4.) The two underlying "predicate" felony convictions in Petitioner's PSR that resulted in a base offense level of 26 were (1) the 2014 Camden County, New Jersey Superior Court conviction for distribution of CDS in a school zone; and (2) the 2011 Williamsburg County, South Carolina conviction for burglary (no specified degree). As for the burglary conviction, the PSR notes, "the circumstances for this case are not available." (Petr's Mem., ECF No. 5 at 4.)

The indictment filed against Petitioner in Williamsburg County, South Carolina on January 27, 2011 charged him with second degree burglary, specifically:

That Marcus Rutling and Joseph Rutling did in Williamsburg County on or about April 30, 2010, enter the building of Kingstree Power and Equipment, without consent and with theintent to commit a crime therein and said defendants entered or remained in said building in the nighttime in violation of Section 16-11-312(B), South Carolina Code of Laws of South Carolina (1976) as amended.

(Petr's Mem., Ex. E, Indictment Number 2011-GS-45-0040, ECF No. 5-2 at 28.) The sentence sheet in that case indicates that Petitioner entered a guilty plea to a count of burglary in the third degree, a violation of § 16-11-313, a "lesser-included" and "non-violent" offense. (Petr's Mem., Ex. F, Sentence Sheet dated March 10, 2011, ECF No. 5-2 at 30.) Petitioner was sentenced to a 3-year prison term. (Id.)

On November 3, 2015, Petitioner was sentenced in Criminal Action No. 15cr111(RMB) USA v. Rutling, 15cr111(RMB) (D.N.J.) (Judgment, ECF No. 26.) Defense counsel did not object to the calculation of the offense level in the PSR. (Petr's Mem., Ex. C, ECF No. 5-2 at 2-3.) The Court adopted the findings in the PSR of total offense level 30, criminal history category 6, for a Guidelines range of 168 to 210 months, capped at 180 months by operation of the statute. (Id. at 12-13.) The Court sentenced Petitioner to a prison term of 60 months on Count One and 120 months on Count Two, to be served consecutively, for a total term of imprisonment of 180 months. (Id. at 19.)

Petitioner did not file a Notice of Appeal. However, on May 27, 2016, Petitioner filed a pro se motion to vacate, set aside,or correct his sentence pursuant to 28 U.S.C. § 2255, alleging that his counsel provided ineffective assistance by failing to argue that his South Carolina burglary conviction did not constitute a "crime of violence," in accordance with the decision in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015). (Mot. to Vacate, ECF No. 1 at 13.) Pursuant to the Court's stay of Johnson cases in Standing Order 16-2, Petitioner, through counsel, filed memorandum of law in support of his motion to vacate on November 1, 2016. (Petr's Mem., ECF No. 5.) In summary, Petitioner alleged that

Mr. Rutling had only one countable conviction for Section 2K2.1's purposes, and his base offense level should have been 22 pursuant to U.S.S.G. § 2K2.1(a)(3). This would have changed his adjusted offense level to 32 rather than 33. Thus the final offense level, after adjustment for acceptance of responsibility, should have been level 29 rather than 30. This would have changed the recommended guideline range from 168-210 months to a significantly lower 151-188 months (capped at 180 months). In other words, this Court sentenced him to the maximum sentence after considering an improperly calculated sentencing range. Therefore, counsel was ineffective for stipulating to the erroneous base offense level in the plea agreement. Additionally, the Probation Department should have caught the error in compiling the Presentence Report upon reviewing his prior conviction records. Had it been properly advised, the Court would have considered the applicable range to have begun at 151 months, not 168.

As discussed below, applicable Third Circuit case law based upon the United StatesConstitution requires a sentencing court to properly calculate a defendant's Guidelines sentence range, at step one of the sentencing process. Moreover, miscalculating the advisory sentencing Guidelines range is not rendered harmless by the fact that the sentence imposed was within an overlapping range. Because counsel stipulated to an incorrect base offense level in the plea agreement, and that formed the basis for the sentence imposed in this case, that sentence must be vacated and this case remanded for resentencing.

Respondent filed an answer to the motion to vacate on January 2, 2018, arguing that Petitioner had not addressed whether his third-degree burglary conviction constituted a crime of violence under the residual clause of the Sentencing Guidelines and maintaining that it is a crime of violence; and in any event, the court would have imposed the same sentence if it was not. (Answer, ECF No. 11.) Petitioner filed a reply on January 19, 2018, arguing that his burglary conviction was not a crime of violence under the residual clause, and the error was prejudicial. (Petr's Reply, ECF No. 11.)

B. The Parties' Arguments

Petitioner's base offense level was calculated under U.S.S.G. § 2K1.2. (Petr's Mem., ECF No. 5 at 1.) Petitioner contends his counsel was ineffective for stipulating at sentencing to an offense level of 26 for Count One, based on two underlying predicate convictions. (Id. at 2.) Petitioner asserts that he had only one countable conviction for purposes of Section 2K2.1, and his baseoffense level should have been 22 under U.S.S.G. § 2K2.1(a)(3). (Petr's Mem. at 2, ECF No. 5.) This would have changed his final offense level to 30, and his recommended Guidelines range to 151-188 months (capped at 180 months). (Id.)

Respondent contends Petitioner's third-degree burglary conviction was a crime of violence under the residual clause of the 2015 Sentencing Guidelines, the version of the Guidelines in effect when he was sentenced on November 3, 2015. (Answer, ECF No. 11 at 4.) The Court notes that the PSR indicates the 2014 Sentencing Guidelines Manual was used to calculate Petitioner's criminal history score, and the Court adopted the PSR without objection at sentencing. USA v. Rutling, 15cr111(RMB) (D.N.J.) (Sentencing Tr., ECF No. 27 at 2-3.) However, the 2014 and 2015 Sentencing Guidelines define "crime of violence" under U.S.S.G. § 4B1.2(b) identically as "burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another."

There are three ways Petitioner's burglary conviction could constitute a crime of violence under § 4B1.2: (1) the elements clause [also known as the "force clause"] under § 4B1.2(a)(1); (2) the enumerated offenses clause of § 4B1.2(a)(2); and (3) the residual clause of § 4B1.2(a)(2), if the underlying crime "presents a potential risk of physical injury to another." (Answer, ECF No.11 at 5.) Respondent notes Petitioner did not address the residual clause in his memorandum of law. (Id.)

Respondent concedes that the Supreme Court, in Johnson v. United States, 135 S. Ct. 2551 (2015), held the residual clause of the Armed Career Criminal Act ("ACCA") is void...