United States v. Canfield, Cause No. CR 03–74–BLG–SPW

• Decision Date: 28 June 2018
• Docket Number: Cause No. CR 03–74–BLG–SPW,CV 16–88–BLG–SPW
• Citation: 323 F.Supp.3d 1155
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Dana CANFIELD, Defendant/Movant.
• Court: U.S. District Court — District of Montana

323 F.Supp.3d 1155

UNITED STATES of America, Plaintiff/Respondent,

v.Dana CANFIELD, Defendant/Movant.

Cause No. CR 03–74–BLG–SPW

CV 16–88–BLG–SPW

United States District Court, D. Montana, Billings Division.

Signed June 28, 2018

James Seykora, U.S. Attorneys, Billings, MT, for Plaintiff/Respondent.

ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

Susan P. Watters, United States District Court

This case comes before the Court on Defendant Canfield's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Canfield is a federal prisoner proceeding with counsel.

I. Procedural Background

Canfield was charged in May 2003 with committing nine casino robberies in Billings, Montana, between March and July 2002. Another person, co-defendant Marion Hungerford, "cased" the casinos and reported to Canfield where the money and the workers were. Canfield then went in to each casino with a gun, pointed it at employees, and demanded money.

Each robbery was charged under the Hobbs Act, 18 U.S.C. § 1951(a). Canfield was charged with nine separate counts under 18 U.S.C. § 924(c)(1)(A) as to each robbery. Hungerford, too, was named in each § 924(c) count as an aider and abettor. Canfield was also charged with two counts of possessing a firearm while subject to an order of protection, violations of 18 U.S.C. § 922(g)(8)(B). See Superseding Indictment (Doc. 49).

A sentence under § 924(c) must run consecutive to any other sentence; further, the first sentence under § 924(c) carries a mandatory five-year penalty, but every § 924(c) conviction thereafter carries another mandatory and consecutive 25 years. Therefore, under the superseding indictment, if convicted on all the § 924(c) counts, each defendant faced a mandatory minimum sentence of 2,460 months, or 205 years, consecutive to any guideline sentence for the robberies. See 18 U.S.C. § 924(c)(1)(A), (D)(ii).

On March 5, 2004, Canfield pled guilty to two counts of using or carrying a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A), Counts 9 and 19 of the Superseding Indictment. The "crime of violence" underlying Count 9 was the robbery at the Jackpot Casino on May 6, 2002 (Count 8). The "crime of violence" underlying Count 19 was the robbery at the Joker's Wild Casino on July 27, 2002 (Count 18). See Superseding Indictment (Doc. 49) at 4, 7–8; Plea Agreement (Doc. 81) at 2–3 ¶ 6.

On December 16, 2004, Canfield was sentenced to serve seven years in prison on Count 9 and a consecutive 25–year term on Count 19, for a total term of 32 years, or 384 months, in prison. Minutes (Doc. 137); Judgment (Doc. 138) at 2–3; 18 U.S.C. § 924(c)(1)(A)(ii). Canfield did not appeal. His sentence was later reduced to 240 months. See Order (Doc. 211).

Canfield now seeks relief under the United States Supreme Court's recent decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).

II. Merits

Everyone would agree that Canfield used a firearm as a weapon in committing a crime. But that does not necessarily mean he is guilty of using or carrying a firearm during and in relation to a "crime of violence" within the meaning of 18 U.S.C. § 924(c).

A. "Crime of Violence"

Congress penalizes those who use a firearm to commit federal drug trafficking crimes and federal crimes of violence. Pursuant to 18 USC § 924(c)(1)(A), a person who does the following will be penalized:

any person who, during and in relation to any crime of violence or drug trafficking crime ... for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm[.]

Drug trafficking is not at issue here. The question is whether Canfield used or carried a firearm in connection with a "crime of violence." Congress defines the term as follows:

For purposes of this subsection [ § 924(c) ] the term "crime of violence" means an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) 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.

18 U.S.C. § 924(c)(3).

A person who trades a firearm for advice on how to commit tax fraud arguably uses the firearm during and in relation to tax fraud, or at least possesses the firearm in furtherance of tax fraud. Cf. Watson v. United States , 552 U.S. 74, 76, 128 S.Ct. 579, 169 L.Ed.2d 472 (2007) ; Smith v. United States , 508 U.S. 223, 241, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993). But § 924(c) could not apply to that person, because tax fraud is not a "crime of violence"—that is, it does not have force as an element, and it does not "by its nature" involve a substantial risk that force will be used.

A person who uses a firearm to extort advice on how to commit tax fraud is at least threatening to use violence, and might even use violence, during and in relation to the crime of tax fraud. It would be reasonable to authorize punishment for using a firearm in that manner. Congress once did so. See Omnibus Crime Control Act of 1970, Pub. L. No. 91–644, tit. II, § 13, 84 Stat. 1889, 1890 (Jan. 2, 1971) (authorizing additional one- to ten-year penalty for using a firearm to commit or unlawfully carrying a firearm during commission of "any felony" prosecutable in court of the United States); Comprehensive Crime Control Act of 1984, Pub. L. No. 98–473, § 1005(a), 98 Stat. 1837, 2138–39 (Oct. 12, 1984) (replacing former § 924(c) with provision imposing five-year sentence for using or carrying a firearm during and in relation to a crime of violence); see also Firearms Owners' Protection Act, Pub. L. No. 99–308, § 104(a)(2)(F), 100 Stat. 449 (May 19, 1986) (enacting definition of "crime of violence" currently found in § 924(c)(3) ).

But Congress does not do so now. Since 1984, Congress has limited the instances in which a person can be punished for using or carrying a firearm in criminal activity. Section 924(c) could not apply to a person who uses a firearm to extort tax fraud advice, because tax fraud does not meet Congress's definition of a crime of violence.

B. Categorical Approach

The key characteristic of Congress's definition of a "crime of violence" is that it applies to categories of crimes, not to the circumstances in which an individual defendant uses or carries or possesses a firearm. Necessarily so, using a firearm as a weapon to commit a crime would make any crime a violent one. But if that was what Congress intended, the phrase "crime of violence" would be superfluous.

Congress uses the identical phrase, "crime of violence," elsewhere in Title 18, see § 16. It uses a similar phrase, "violent felony," elsewhere in § 924, at subsection 924 (e)(2)(B). As to both § 924(e)(2)(B) and § 16, courts use a "categorical approach" to decide whether a given crime fits Congress' definition. This approach looks "only to the statutory definitions" of the crime, "not to the particular facts underlying" an individual defendant's commission of the crime. Taylor v. United States , 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ; see also United States v. Sherbondy , 865 F.2d 996, 1009–10 (9th Cir. 1988) (holding that district court may look only "to the statutes establishing the crimes," not "the individual defendant's specific conduct in committing the ... offense."), cited in Taylor , 495 U.S. at 600, 110 S.Ct. 2143.

The Ninth Circuit has long required courts use the categorical approach to interpret § 924(c)(3) just as they interpret § 924(e)(2)(B) and § 16. See United States v. Benally , 843 F.3d 350, 352 (9th Cir. 2016) ; United States v. Amparo , 68 F.3d 1222, 1224–26 (9th Cir. 1995). Section 924(c) only penalizes those who use a firearm to commit some crimes. For the penalty to apply, the predicate crime to a § 924(c) conviction must always be a "crime of violence," regardless of how a particular defendant might commit the crime, and regardless of whether a firearm is used or carried or possessed in furtherance of it. "A crime cannot categorically be a ‘crime of violence’ if the statute of conviction punishes any conduct not encompassed by the statutory definition of a ‘crime of violence.’ " Benally , 843 F.3d at 352.

The next question is whether Canfield's violation of the Hobbs Act was a "crime of violence," either because it "has as an element the use, attempted use, or threatened use of physical force against the person or property of another," or because, "by its nature, [it] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." 18 U.S.C. § 924(c)(3). To answer this question, the Court must use the categorical approach.

C. Robbery or Extortion?

Canfield's case differs from that of many others litigated in this District under Johnson . He argues that Hobbs Act robbery is not a crime of violence under § 924(c)(3)(A). He also points to Hobbs Act extortion cases to show that some offenses prosecuted under the Act are non-violent. The United States' amended answer invites the Court to review the indictment and plea agreement to establish that Canfield was convicted of Hobbs Act robbery. See Am. Answer (Doc. 291) at 25–26; see generally Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005).

The Indictment alleged that Canfield committed "robbery" and took property from each business "against its will by means of actual and threatened force, violence and fear of injury." See Superseding Indictment (Doc. 49) at 7 (Count 8), 11 (Count 18). These are unambiguous allegations using the words of the Hobbs Act's definition of robbery. See 18 U.S.C. § 1951(b)(1).

The Plea Agreement presented different elements. It said:

[Canfield] further acknowledges that these are the elements of the crime charged in Counts IX

...