United States v. Bong

• Decision Date: 28 January 2019
• Docket Number: No. 16-3323,16-3323
• Parties: UNITED STATES of America, Plaintiff - Appellee, v. Troy A. BONG, Defendant - Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

913 F.3d 1252

UNITED STATES of America, Plaintiff - Appellee,

v.Troy A. BONG, Defendant - Appellant.

No. 16-3323

United States Court of Appeals, Tenth Circuit.

FILED January 28, 2019

Josh Lee, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Office of the Federal Public Defender for the District of Colorado, Denver, Colorado, appearing for Appellant.

Jared S. Maag, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with him on the briefs), Office of the United States Attorney for the District of Kansas, Topeka, Kansas, appearing for Appellee.

Before BRISCOE, KELLY, and BACHARACH, Circuit Judges.

BRISCOE, Circuit Judge.

Defendant Troy Bong, convicted in 2013 of being a felon in possession of a firearm and sentenced to a term of imprisonment of 293 months, appeals from the district court’s denial of his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The district court granted Bong a certificate of appealability (COA) on Bong’s claims that he was improperly sentenced under the Armed Career Criminal Act (ACCA) and that his trial and appellate counsel were ineffective for failing to challenge the ACCA sentencing. We subsequently granted Bong a COA as to two additional issues: (1) whether his trial counsel was ineffective for failing to investigate the facts of the underlying traffic stop, Bong’s resulting arrest, and Bong’s alleged possession of a firearm; and (2) whether the prosecution suppressed any available video recordings of his stop and arrest.

Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we agree with Bong that the district court erred in treating his prior Kansas state convictions for robbery and aggravated robbery as "violent felonies" under the ACCA. Consequently, we remand to the district court for consideration of whether Bong’s remaining prior convictions are sufficient to support his sentence under the ACCA. As for Bong’s ineffective assistance of trial counsel claims, we affirm in part, reverse in part, and remand for further proceedings. Lastly, as to Bong’s prosecutorial misconduct claim, we reverse and remand for further proceedings.

I

a) The underlying facts of Bong’s case

In an unpublished order and judgment issued in 2014, we addressed Bong’s direct appeal and summarized the underlying facts of his case:

On December 22, 2012, Officers [Robert] Thatcher and [Joseph] Springob of the Wichita Police Department were parked outside a house that was the subject of a drug investigation. The officers observed a car leave the target house and followed the vehicle. The driver of the vehicle failed to activate the car’s turn signal 100 feet before an intersection. Based on this traffic violation, the officers initiated a traffic stop. Officer Springob approached the driver’s side of the car, while Officer Thatcher approached the passenger side. A woman, later identified as Mr. Bong’s wife, was driving the car. Mr. Bong was in the front passenger seat.

Officer Thatcher used his flashlight to look into the passenger side of the vehicle as he approached. Officer Thatcher testified Mr. Bong refused to make eye contact, instead staring straight ahead. Officer Thatcher thought Mr. Bong looked familiar, prompting him to ask for Mr. Bong’s identification. Mr. Bong opened the passenger door to hand Officer Thatcher his identification. As Mr. Bong opened the door, Officer Thatcher noticed a cigarette pack between the passenger seat and the door. Officer Thatcher found this suspicious because in his experience people attempting to hide illegal substances often drop them between the seat and door.

After examining Mr. Bong’s identification, Officer Thatcher recalled he had previously arrested Mr. Bong on drug, firearms, and parole violation charges. Officer Thatcher asked Mr. Bong if he was still on parole, but Mr. Bong refused to respond. According to Officer Thatcher, Mr. Bong began to exhibit signs of nervousness—heavy breathing, sweating, and refusal to acknowledge the officer. Because Officer Thatcher’s prior arrest of Mr. Bong had involved a firearm, the officer became concerned for his and Officer Springob’s safety. Officer Thatcher then asked Mr. Bong to exit the vehicle. Mr. Bong initially refused to respond, but he eventually exited the vehicle after Officer Thatcher repeated his order several times.

When Mr. Bong stepped out of the vehicle, Officer Thatcher noticed he was standing so that the right side of his body was turned away. Officer Thatcher also observed a knife clipped into one of the front pockets of Mr. Bong’s jacket. Officer Thatcher removed the knife from Mr. Bong’s pocket and told him to put his hands on top of the car. He then informed Mr. Bong that he was going to perform a patdown for weapons. According to Officer Thatcher, Mr. Bong hesitated, but eventually put his hands on the top of the car.

Officer Thatcher reached up to place his hands on top of Mr. Bong’s hands on the car roof. As he did so, Mr. Bong attempted to back away from the car and evade Officer Thatcher. Because he feared Mr. Bong might have a weapon, Officer Thatcher attempted to maintain control of Mr. Bong’s hands. The two struggled briefly, at which point Officer Thatcher tried to throw Mr. Bong to the ground while keeping control of his hands. Both men fell to the ground, still struggling. As Mr. Bong attempted to rise, Officer Thatcher kicked him approximately three times in the abdomen in an attempt to knock him back down. At that point, Officer Thatcher observed a black object resembling a firearm fall to the ground. He immediately yelled "gun, gun!" Aplt. Appx. at 93.

In response to Officer Thatcher’s shout, Officer Springob entered the fray and knocked Mr. Bong to the ground. The officers were able to subdue Mr. Bong and place him in handcuffs. After the officers restrained Mr. Bong, they found a firearm on the ground beneath him.

United States v. Bong, 596 F. App'x 607, 608–09 (10th Cir. 2014) ( Bong I ).

b) Bong’s trial proceedings and sentencing

On January 8, 2013, a federal grand jury indicted Bong on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). Bong "moved to suppress the evidence obtained during the traffic stop and his arrest, arguing it was obtained in violation of his Fourth Amendment rights." 596 F. App'x at 609. Bong "acknowledged the officers had reasonable suspicion to initiate an investigative traffic stop on the basis of the observed traffic violation," but nevertheless "argued the scope of the detention following the traffic stop and the force used by the officers was unreasonable." Id."The district court expressed concern about the level of force used by the officers, but it ultimately concluded Officer Thatcher’s actions were justified under the circumstances" and thus "denied [the] motion to suppress." Id.

"The case proceeded to trial," where the "Government advanced the theory that ... Bong dropped the gun during the scuffle with the officers." Id."Bong’s defense was that another man, Jeremy Fisher, had dropped the gun where it was found and the traffic stop and subsequent scuffle only coincidentally occurred at the same location ... Fisher had dropped the gun." Id. At the conclusion of the evidence, the jury convicted Bong of the felon-in-possession charge.

The presentence investigation report (PSR) applied a base offense level of 24. But the PSR concluded that Bong "ha[d] at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions" and was therefore "an armed career criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e)." ROA, Vol. 2 at 11. Consequently, the PSR applied an offense level of 33 pursuant to U.S.S.G. § 4B1.4. The PSR in turn concluded that Bong’s total criminal history score was 31, which resulted in a criminal history category of VI. Together, the total offense level of 33 and the criminal history category of VI resulted in an advisory sentencing guidelines range of 235 to 293 months.

Bong did not file objections to the PSR, but did file a sentencing memorandum asking the district court to vary downward and impose a sentence of 187 months. The district court denied that request and sentenced Bong to a term of imprisonment of 293 months.

c) Bong’s direct appeal

Bong filed a direct appeal challenging the district court’s denial of his motion to suppress. Bong also challenged the trial court’s admission at trial of two sets of statements. On December 18, 2014, we issued an unpublished order and judgment rejecting Bong’s arguments and affirming Bong’s conviction. Bong I, 596 F. App'x at 614.

Bong filed a petition for writ of certiorari with the Supreme Court. His petition was denied on April 20, 2015. Bong v. United States, ––– U.S. ––––, 135 S.Ct. 1873, 191 L.Ed.2d 746 (2015).

d) Bong’s § 2255 proceedings

On April 6, 2016, Bong filed a pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 asserting twenty-two separate grounds for relief. Of relevance here, Ground One of the motion argued that in light of the Supreme Court’s decision in Johnson v. United States, ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ( Johnson II ), Bong’s prior convictions did not qualify as "violent felonies" or "crimes of violence" for enhanced sentencing purposes because they did not require the use, attempted use, or threatened use of physical force. ROA, Vol. 1 at 633. Ground Two alleged, in pertinent part, that Bong’s appellate counsel was ineffective for failing to "raise, brief and argue the ... fast developing legal issues regarding [the] Armed Career Criminal Act and enhanced sentence." Id. at 634. Ground Twenty One of Bong’s motion alleged that his trial counsel was ineffective for failing to challenge the PSR or the convictions used to qualify Bong for the ACCA enhancement. Id. at 655.

Bong subsequently moved for...