United States v. Bowen
| Citation | 228 F.Supp.3d 1204 |
| Decision Date | 12 January 2017 |
| Docket Number | Criminal Action No. 05–cr–00425,Civil Action No. 16–cv–01119–REB |
| Court | U.S. District Court — District of Colorado |
| Parties | UNITED STATES of America, Plaintiff, v. 4. Aaron BOWEN, Defendant–Movant. |
Joshua Gramling Stein, Judith A. Smith, U.S. Attorney's Office, Denver, CO, for Plaintiff.
Lynn Anne Pierce, Butler, Landrum & Pierce P.C., Lakewood, CO, for Defendant-Movant.
ORDER DENYING § 2255 MOTION TO VACATE
This matter is before me on the 28 U.S.C. § 2255 Motion To Vacate Sentence [# 611]1 filed May 14, 2016. The government filed an answer [# 614], and the defendant filed a reply [# 622]. In addition, the government filed a notice of supplemental authority [# 630]. I deny the motion.
Under 28 U.S.C. § 2255(a), a federal prisoner claiming the right to be released on the ground that his federal 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," may move to have his sentence vacated, set aside, or corrected.
A jury convicted the defendant, Aaron Bowen, of (1) retaliation against a witness; (2) conspiracy to retaliate against a witness; and (3) brandishing of a firearm in furtherance of a crime of a crime of violence. Amended Judgment [# 474]. Mr. Bowen was found guilty of the brandishing offense in relation to both the retaliation against a witness conviction and the conspiracy to retaliate conviction. He was sentenced to 77 months in prison for the first two crimes. The brandishing offense resulted in a sentence enhancement of an additional, consecutive 84 months under 18 U.S.C. § 924(c). His convictions were affirmed on direct appeal. United States v. Bowen , 527 F.3d 1065, 1080 (10th Cir. 2008).
In his present motion, Mr. Bowen challenges the sentence enhancement based on his brandishing of a firearm in furtherance of a crime of violence. This sentence enhancement is defined by 18 U.S.C. § 924(c)(1)(A)(ii). This particular subsection provides for a sentence enhancement when, during and in relation to a crime of violence, the defendant brandishes a firearm. For Mr. Bowen to be subject to a sentence enhancement under this portion of § 924(c), at least one predicate offense must have been a "crime of violence." Here, the predicate offenses were retaliation against a witness and conspiracy to retaliate against a witness. A sentence for a § 924(c) offense must be "in addition to," meaning consecutive to, the punishment provided for the underlying crime of violence.
18 U.S.C. § 924(c)(3). I will refer to paragraph (A) as the elements clause and paragraph (B) as the risk of force clause. Both witness retaliation and conspiracy to retaliate against a witness are felonies.
Mr. Bowen asserts that his sentence enhancement under § 924(c)(1)(A)(ii) must be vacated. He makes two arguments to support of this contention. First, Mr. Bowen contends that neither of the two predicate offenses, retaliation against a witness and conspiracy to retaliate against a witness, fits the definition of a crime of violence under the physical force clause § 924(c)(3)(A). If that is true, then the two predicate offenses may be considered crimes of violence only if they fit the definition under the risk of force clause, § 924(c)(3)(B).
Second, Mr. Bowen contends that the risk of force clause now is invalid because it is void for vagueness. This argument is based on the ruling of the Supreme Court of the United States that a somewhat similar provision in the Armed Career Criminal Act (ACCA) is unconstitutionally vague. See Johnson v. U.S. , ––– U.S. ––––, –––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). If neither of his predicate crimes fit the definition of a crime of violence stated in § 924(c)(3)(A) and if § 924(c)(3)(B) is void under Johnson , then, Mr. Bowen asserts, his § 924(c) sentence enhancement must be vacated.
In response, the government contends the motion was not filed within the one year period of limitation provided in § 2255(f). Generally, that one year period begins to run on the date the conviction in question became final. The convictions of Mr. Bowen became final when the Supreme Court denied his petition for certiorari on October 6, 2008. Bowen v. U.S. , 555 U.S. 930, 129 S.Ct. 312, 172 L.Ed.2d 226 (2008). His present motion was filed on May 14, 2016, more than seven years after his convictions became final.
28 U.S.C. § 2255(f)(3). Mr. Bowen contends he is asserting the right newly recognized by the Supreme Court in Johnson and he has asserted that right within one year of the date on which this new right was recognized by the Supreme Court. The rule in Johnson applies retroactively. Welch v. U.S. , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). The nature of the claim asserted by Mr. Bowen determines whether or not he asserts here the right newly recognized in Johnson . Only if he is asserting that newly recognized right may he properly claim the benefit of the limitations period under § 2255(f)(3).
Mr. Bowen contends neither witness retaliation nor conspiracy to retaliate against a witness fits the definition of a crime of violence stated in § 924(c)(3)(A), the elements clause, because neither of these predicate offenses has as an element the use, attempted use, or threatened use of physical force against the person or property of another. Concerning the crime of witness retaliation, Mr. Bowen is clearly incorrect.
This issue calls for application of the categorical approach. U.S. v. Serafin , 562 F.3d 1105, 1107–1108 (10th Cir. 2009). Under the categorical approach, the court must look to the elements of the predicate conviction, rather than to the specific conduct giving rise to that conviction, when determining if a predicate conviction qualifies as a crime of violence. See U.S. v. Descamps , ––– U.S. ––––, –––––, 133 S.Ct. 2276, 2283, 186 L.Ed.2d 438 (2013) (applying 18 U.S.C. § 924(e) ). Based on the statutory elements of witness retaliation, as charged against Mr. Bowen, witness retaliation constitutes a crime of violence under § 924(c)(3)(A).
The crime of witness retaliation is defined in 18 U.S.C. § 1513. Mr. Bowen was charged under § 1513(b), which includes as elements the requirements that the defendant "knowingly engages in any conduct and thereby causes bodily injury to another person or damages the tangible property of another person, or threatens to do so ...." 18 U.S.C. § 1513(b). Section 1513(b) does not provide alternative versions of this crime with alternative elements. Witness retaliation as defined in § 1513(b) includes as a necessary element "the use, attempted use, or threatened use of physical force against the person or property of another," as required by § 924(c)(3)(A). Mr. Bowen's conviction for witness retaliation readily falls within the elements clause of § 924(c)(3)(A). Thus, that conviction constitutes a crime of violence as defined in § 924(c)(3)(A).
Mr. Bowen contends also that his conviction for conspiracy to retaliate against a witness does not fall within the elements clause of § 924(c)(3)(A). For purposes of the present motion, I assume without deciding that this conspiracy conviction does not fall within § 924(c)(3)(A). Indulging that assumption, the conspiracy conviction may be considered to be a crime of violence under § 924(c) only if this conviction falls within the risk of force clause, § 924(c)(3)(B). Mr. Bowen contends the risk of force clause now is invalid after the ruling of the Supreme Court of the United States that a similarly worded provision in the Armed Career Criminal Act (ACCA) is unconstitutionally vague. SeeJohnson v. U.S. , ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). In Johnson , the Supreme Court held that the imposition of an enhanced sentence under the residual clause of § 924(e)(2)(B)(ii) violates the due process guarantee of the Constitution of the United States. ––– U.S. ––––, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). That is true, the Court held, because the residual clause of § 924(e)(2)(B)(ii) is unconstitutionally vague. Id. at ––––, 135 S.Ct. at 2557.
In Johnson , the Supreme Court voided part of 18 U.S.C. § 924(e)(2)(B)(ii) which defined the term "violent felony." The so-called residual clause of § 924(e)(2)(B)(ii) defined "violent felony" to include any offense that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). According to Johnson , this language required courts to apply an imprecise measurement of risk to a "judge-imagined abstraction" of what the "ordinary case" of a crime would look like. Johnson , ––– U.S. ––––, 135 S.Ct. at 2557. In the view of the Johnson Court, by using the phrase "involves conduct," the residual clause "ties the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime, not to real-world facts or statutory elements." Id. Moreover, the phrase "serious potential risk of physical...
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...(A) is known as the "elements" clause and paragraph (B) is the "residual" clause.Magistrate Joseph, in reliance on United States v. Bowen , 228 F.Supp.3d 1204 (D. Colo. 2017), found that a Section 1513(b) offense qualifies as a crime of violence under the elements clause. (Docket # 138 at 4......