United States v. Bonaparte

• Decision Date: 25 July 2017
• Docket Number: 2:12-cr-132-JAD-CWH-2
• Parties: The United States of America, Plaintiff v. William Bonaparte, Defendant
• Court: U.S. District Court — District of Nevada

The United States of America, Plaintiff v. William Bonaparte, Defendant

2:12-cr-132-JAD-CWH-2

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

July 25, 2017

Order Granting Motion to Vacate (§ 2255)

[ECF Nos. 195, 198]

Federal inmate William Bonaparte pled guilty to, and was convicted of, three counts of interference with commerce by robbery and one count of conspiracy to interfere with commerce by robbery under the Hobbs Act, 18 U.S.C. § 1951. Bonaparte received 78-month, concurrent sentences for the conspiracy and each of the robberies. He also received an additional seven years for violating 18 U.S.C.§ 924(c)(1)(A)(ii), which imposes a mandatory minimum seven-year sentence for brandishing a firearm during a "crime of violence." Here, that crime of violence was Bonaparte's conspiracy conviction.

Bonaparte moves to vacate his sentence, arguing that he did not commit a crime of violence within the meaning of § 924(c), which means his conviction and additional seven-year sentence under this statute is infirm. Bonaparte points to Johnson v. United States,¹ in which the Supreme Court recently struck down part of a crime-of-violence sentence enhancement in the Armed Career Criminal Act. Bonaparte contends that Johnson's holding applies to § 924(c) and results in his conspiracy conviction no longer qualifying as a crime of violence.

The government responds first with the procedural argument that Bonaparte is precluded from challenging his sentence because he waived his post-conviction challenges in his plea agreement. But when Bonaparte entered into that deal, Johnson did not exist and there was no question that § 924(c)'s seven-year enhancement applied to him. The Ninth Circuit maintains thatdefendants cannot be held responsible for failing to make constitutional challenges that did not exist when they were sentenced. So I do not find that Bonaparte's motion is barred by his collateral-attack waiver or based on its timing. And when I reach the petition's merits, I find that Johnson renders Bonaparte's § 924(c) conviction infirm as a matter of law.² I thus grant Bonaparte's motion, vacate his § 924(c) conviction and sentence, and schedule him for resentencing.

Background

William Bonaparte and three co-defendants were indicted after a single-day spree of four convenience-store armed robberies. The ten-count indictment charged the group with four counts of interference with commerce by robbery under the Hobbs Act, 18 U.S.C. § 1951 ("Hobbs Act robbery"), one count of conspiracy to interfere with commerce by robbery ("Hobbs Act conspiracy"), and five counts of brandishing a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)—one specifically tied to each of the five predicate offenses.³ All four defendants entered guilty plea agreements. Bonaparte pled to three of the robbery counts, the conspiracy count, and the first of the § 924(c) counts, which charged him with brandishing a firearm "during and in relation to the crime of violence charged in Count One of th[e] indictment," which was the Hobbs Act conspiracy charge.⁴ Bonaparte's plea was accepted and he was sentenced to 78 months per count concurrent on the robbery and conspiracy charges. And he received the mandatory minimum seven-year sentence required by § 924(c)(1)(A)(ii) for the brandishing charge on top of the 78 months for the other counts, for a total sentence of 162 months.⁵

The government raises two primary arguments against Bonaparte's motion to vacate: (1) he should be precluded from challenging his sentence in the first place because he entered into a pleaagreement and did not raise this challenge sooner; and (2) regardless, his Hobbs Act conspiracy conviction still qualifies as a crime of violence under § 924(c). I start with the procedural barrier.

Discussion

A. Bonaparte did not waive his right to raise a new constitutional argument that was not previously available to him.

The government first argues that Bonaparte waived his right to challenge his sentence because (1) his plea agreement contains a collateral-attack waiver, and (2) he failed to preserve the argument by raising it in a pretrial motion. The Ninth Circuit has explained that an appeal waiver in a plea agreement cannot bar a defendant's challenge to his sentence based on an unconstitutionally vague statute.⁶ At the time Bonaparte was sentenced, his conviction easily qualified as a crime of violence under § 924(c). It was not until the Supreme Court handed down Johnson that he suddenly had a constitutional challenge available to him. Bonaparte's instant motion based on Johnson and the unconstitutionality of § 924(c)'s residual clause is thus not barred by the terms of his plea agreement.⁷

Nor is Bonaparte procedurally barred from challenging his sentence under 28 U.S.C. § 2255 because he did not raise it in a pretrial motion. Section 2255(f)(3) allows Bonaparte to challenge his sentence within one year of "the date on which the right [he] assert[s] was initially recognized by the Supreme Court." Bonaparte moved for relief within a year after Johnson issued. And as I explainbelow, I find that the Supreme Court's ruling in Johnson applies to § 924(c), so Bonaparte is asserting a right that was recognized by the Supreme Court, making his motion timely.⁸ Bonaparte's plea-agreement waiver and failure to raise this challenge earlier do not preclude him from challenging his sentencing enhancement.

B. Hobbs Act conspiracy does not qualify as a crime of violence under § 924(c) after Johnson.

Title 18 U.S.C. § 924(c) criminalizes using or carrying a firearm in relation to a "crime of violence" and imposes mandatory, consecutive minimum sentences. An offense may qualify as a crime of violence under either of two clauses. Section 924(c)(3)(A), also known as the statute's "force clause," includes a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Section 924(c)(3)(B), known as the "residual clause" of the statute, encompasses any felony offense "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." Bonaparte contends that his Hobbs Act conspiracy conviction does not qualify under either the residual or the force clause, so his § 924(c) conviction and resulting seven-year consecutive sentence are invalid.

1. Section 924(c)'s residual clause is unconstitutionally vague.

In the past, courts often relied on the residual clause to find that a conviction qualifies as a crime of violence under § 924(c) because there is more leeway in the standard: as long as the predicate crime involves a "substantial risk" of "physical force" being used against someone, it's in. But the residual clause's nebulous nature raises serious due process concerns: defendants often struggle to discern whether their convictions meet this standard.

This concern was the focus of the Supreme Court's recent watershed case, Johnson v. United States. In Johnson, the Supreme Court tested the constitutionality of the residual clause of anothersubsection of § 924—§ 924(e), known as the Armed Career Criminal Act ("ACCA"). Under the ACCA, "a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a 'violent felony,' a term defined to include any felony that 'involves conduct that presents a serious potential risk of physical injury to another.'"⁹ The High Court evaluated the clause's violent-felony definition using the "framework known as the categorical approach," which "assesses whether a crime qualifies as a violent felony 'in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion.'"¹⁰ It concluded that "the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates," and held it void for vagueness.¹¹

The government contends that Johnson's holding should be confined to ACCA cases. Several courts outside of the Ninth Circuit agree.¹² They reason that the ACCA's residual clause was unconstitutionally broad and vague at least in part for reasons that don't track § 924(c)'s residual clause. For one, § 924(c)'s residual clause is much narrower: it requires physical force to be used against a victim; the ACCA's clause extended to any crime that happened to cause a physical injury, whether or not physical force was used. For another, § 924(c)'s clause is limited to crimes that are inherently dangerous when they are committed, while the ACCA's clause extended to crimes that merely created a risk of danger in the future. Finally, the ACCA's clause sowed additional confusion because it covered any dangerous crimes that related to four distinct enumerated offenses—§ 924(c) covers only a single dangerous crime, uses of physical force. So there are sensible reasons todistinguish Johnson, and in another circuit, these reasons might carry the day.

But I am bound by the Ninth Circuit's guidance. And in Dimaya v. Lynch, the Ninth Circuit rejected a reading of Johnson that would confine it to the ACCA,¹³ extending Johnson to invalidate the INA's residual clause. Save an additional comma, the INA's residual clause is indistinguishable from § 924(c)'s—the Ninth Circuit has thus already addressed these same arguments about whether a narrower residual clause like § 924(c)'s is impacted by Johnson.¹⁴ And the answer, at least in this circuit, appears to be that Johnson's invalidation of this statutory language extends beyond the ACCA.

The Dimaya panel acknowledged that the ACCA's residual clause is worded a bit differently than the INA's.¹⁵ But it reasoned that these were distinctions without a difference. The panel explained that, in striking down the ACCA's clause, the Supreme Court in Johnson was chiefly concerned with two problems: (1)...