United States v. Butler

• Decision Date: 25 May 2017
• Docket Number: Criminal No. 12-46 (CKK), Civil Action No. 16-1187 (CKK).
• Citation: 253 F.Supp.3d 133
• Parties: UNITED STATES of America, v. Tarik BUTLER, Defendant.
• Court: U.S. District Court — District of Columbia

253 F.Supp.3d 133

UNITED STATES of America,

v.Tarik BUTLER, Defendant.

Criminal No. 12-46 (CKK), Civil Action No. 16-1187 (CKK).

United States District Court, District of Columbia.

Signed May 25, 2017

Tarik Butler, pro se.

MEMORANDUM OPINION

COLLEEN KOLLAR–KOTELLY, UNITED STATES DISTRICT JUDGE

Presently before the Court are Defendant Tarik Butler's [31] Revised Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and Mr. Butler's [33] Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255. Upon a searching review of the parties' submissions,¹ the relevant authorities, and the record as a whole, the Court finds that Mr. Butler no longer qualifies for a sentencing enhancement pursuant to the Armed Career Criminal Act based on his prior criminal convictions in light of the Supreme Court of the United States' holding in Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Accordingly, the Court shall GRANT Mr. Butler's [31] Revised Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, and Mr. Butler's [33] Supplemental Motion to Vacate Judgment Under 28 U.S.C. § 2255, and set this matter for a resentencing.

I. BACKGROUND

On February 23, 2012, an indictment was filed charging Mr. Butler with unlawful distribution of 28 grams or more of cocaine base in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii). Mr. Butler was arrested on February 28, 2012. On June 25, 2012, an information was filed charging unlawful possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e)(1). On that same day, Mr. Butler pled guilty to the sole count of the indictment, unlawful distribution of 28 grams or more of cocaine base, and the sole count of the information, unlawful possession of a firearm, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). As part of the plea agreement, Mr. Butler acknowledged that "unlawful possession of a firearm carries a penalty of imprisonment of not less than 15 years." Plea Agmt. at 1. Further, as part of the terms of the 11(c)(1)(C) plea, the parties agreed that a 180–month (15–year) term of imprisonment was the appropriate sentence which the Court accepted.

This matter proceeded to sentencing on October 10, 2012. At that time, a person convicted of a § 922(g) violation who also had three prior convictions for a "violent felony" or "serious drug offense" was subject to a 15–year mandatory minimum pursuant to the Armed Career Criminal Act ("ACCA"). 18 U.S.C. § 924(e)(1) (2012). Further, a "violent felony" was defined as any crime punishable by a term of imprisonment exceeding one year that: (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another;" (2) "is burglary, arson, or extortion, [or] involves use of explosives;" or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B). Generally, these clauses are known respectively as the "elements clause,"² the "enumerated clause," and the "residual clause." United States v. Redrick , 841 F.3d 478, 480 & n.3 (D.C. Cir. 2016). Further, at the time of sentencing, United States Sentencing Guideline ("U.S.S.G.") § 2K2.1(a)(2) provided a sentencing enhancement for a defendant who had "at least two felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(2) (2012). Further, U.S.S.G. § 4B1.2(a) provided a sentencing enhancement for a person classified as a Career Offender, meaning a person whose present conviction was one for a "crime of violence" or "controlled substance offense," and had two prior felony convictions for such offenses. A "crime of violence" was defined for both guideline provisions in materially the same manner as "violent felony" discussed above. See § 2K2.1(a)(2), comment. n.1; U.S.S.G. § 4B1.2(a).

The Court sentenced Mr. Butler to a term of imprisonment of 15 years (180 months), in accordance with the Rule 11(c)(1)(C) plea agreement, on both counts followed by a term of supervised release of 5 years (60 months). In imposing this sentence, the Court found that Mr. Butler was subject to a 15–year mandatory minimum in light of his prior convictions. Judg. in Cr. Case, Stmt. of Reasons at 1; Sent'g Hrg. Tr. (Oct. 10, 2012), at 3:10–13, ECF No. [29] ("He also pled to Count 1 of an Information, which was unlawful possession of a firearm by a felon with three convictions. And that has a statutory 15–year mandatory minimum to life with a maximum fine of $250,000."). Specifically, Mr. Butler had: a 1995 conviction for attempted distribution of cocaine in the District of Columbia, PSR ¶ 41, ECF No, [17]; and two 2000 convictions for assault with a dangerous weapon in the District of Columbia, id. ¶¶ 44, 45.³ See Sent'g Hrg. Tr. (Oct. 10, 2012), at 9:1–15. As reflected in the Presentence Investigation Report, Mr. Butler was subject to a mandatory minimum term of imprisonment of 15 years pursuant to the ACCA, 18 U.S.C. § 924(e)(1). PSR ¶ 107. Further, the Court applied U.S.S.G. §§ 2K2.1(a)(2) (increased base level offense based on two prior felony convictions for a crime of violence or controlled substance offense) and 4B1.4 (Armed Career Criminal enhancement) in calculating Mr. Butler's sentencing range under the U.S.S.G. Id. ¶¶ 27, 37; Sent'g Hrg. Tr. (Oct. 10, 2012), at 5:3–6 (adopting the PSR as written). Mr. Butler did not appeal his conviction or sentence.

On June 26, 2015, the Supreme Court of the United States ("Supreme Court") in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), held that the residual clause of the ACCA, § 924(e)(2)(B)(ii), is unconstitutionally vague. Id. at 2563. On April 18, 2016, the Supreme Court held in Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), that its decision in Johnson announced a substantive rule that has a retroactive effect in cases on collateral review. Id. at 1268. In light of these holdings, on June 2, 2016, Chief Judge Beryl A. Howell issued a Standing Order "appoint[ing] the Office of the Federal Public Defender for the District of Columbia to represent any defendant previously determined to have been entitled to appointment of counsel, or who is now indigent, to determine whether that defendant may qualify to seek to vacate a conviction or to seek a reduction of sentence or to present any motions to vacate a conviction and/or for reduction of sentence in accordance with Johnson and Welch ." Pursuant to the procedures set out in that Standing Order, Mr. Butler, through counsel, filed an abridged [31] Motion Under 28 U.S.C. §§ 2255 to Vacate, Set Aside, or Correct Sentence on June 24, 2016. The motion currently is pending before this Court and further briefing on this motion was made in accordance with Chief Judge Howell's Standing Orders of June 2, 2016, and September 9, 2016, and subsequent order of this Court. Mr. Butler argues that two of his prior convictions no longer qualify as violent felonies under the ACCA or crimes of violence under U.S.S.G. § 2K2.1(a)(2) in light of the Supreme Court's holding in Johnson and, as such, requests that the Court correct his sentence. See generally Def.'s Supp. Mot.

With respect specifically to Mr. Butler's arguments regarding the applicability of certain provisions of the U.S.S.G., the Court notes that the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") extended the reasoning of Johnson to the U.S.S.G., finding that the similarly worded residual clause of U.S.S.G. § 4B1.2(b) also is unconstitutional under the void-for-vagueness doctrine. United States v. Sheffield , 832 F.3d 296, 312–13 (D.C. Cir. 2016). However, after briefing was complete on the instant motion, the Supreme Court in Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017), held that the residual clause of U.S.S.G. § 4B1.2(a)(2) is not void for vagueness because the U.S.S.G. are not subject to a vagueness challenges under the due process clause. Id. at 890. The Supreme Court noted that its holding did not render the U.S.S.G. immune from constitutional scrutiny, including scrutiny under the due process clause. Id. at 895–96. Rather, the majority opinion of the Supreme Court held specifically that the void-for-vagueness doctrine was inapplicable to the advisory U.S.S.G. Id. at 896. The Supreme Court explained: "Unlike the ACCA, ... the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range." Id. at 892.

Given that Beckles was decided after the instant motion was briefed, neither party has discussed the import, if any, of the Supreme Court's decision in Beckles to Mr. Butler's conviction and sentence. The Court has determined that it need not reach this issue of the applicability of the U.S.S.G. at this juncture. Rather, the Court's analysis shall focus on whether Mr. Butler's prior offenses constitute violent felonies under the ACCA. For the reasons described below, the Court finds that Mr. Butler was improperly sentenced to a mandatory minimum sentence under the ACCA and, accordingly, must be resentenced. As such, the Court shall allow the parties to make any arguments regarding the applicability of the U.S.S.G. in their memorandums in aid of sentencing prior to resentencing.

II. LEGAL STANDARD

Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move the sentencing court to vacate, set aside, or correct its sentence if the prisoner believes that the 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." 28 U.S.C. § 2255(a). The circumstances...