United States v. Chann
Decision Date | 08 August 2019 |
Docket Number | No. 2:99-cr-000433 WBS AC,2:99-cr-000433 WBS AC |
Parties | UNITED STATES OF AMERICA, Plaintiff/Respondent, v. THY CHANN, Defendant/Movant. |
Court | U.S. District Court — Eastern District of California |
Movant, a federal prisoner, brings a challenge to his sentence under 28 U.S.C. § 2255. ECF No. 1728. Movant seeks relief pursuant to Johnson v. United States, 135 S. Ct. 2551 (2015) ( ). Id. The United States opposes the motion, ECF No. 1768, and movant has replied, ECF No. 1774.
Mr. Chann and six co-defendants were charged by indictment on October 1, 1999, with charges arising from four robberies. ECF No. 1. After lengthy pre-trial litigation, defendants and counts were severed for trial. ECF No. 475. Three of the defendants, including Chann, were tried in 2003 on the first three counts, which involved a jewelry store robbery. On June 9, 2003, Chann was found guilty by the jury of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1); using a firearm to commit a crime of violence, in violation of 18 U.S.C. § 924(c)(1) (Count 2); and death caused by use of a firearm during a crime of violence, in violation of the former 18 U.S.C. § 924(i) (now § 924(j)) (Count 3). ECF No. 526. Chann was sentenced on March 31, 2004, to life imprisonment plus a consecutive 60 months. ECF No. 633.1
On May 3, 2006, Chann entered guilty pleas to the previously severed counts: two additional counts of conspiracy to commit Hobbs Act robbery (Counts 6 and 8), and two additional counts of using a firearm to commit a crime of violence (Counts 7 and 9).2 ECF No. 767. He was sentenced on August 11, 2006 as follows: 240 months on counts 6 and 8, to be served concurrently to each other; 240 months on counts 7 and 9, to be served consecutively to each other and consecutive to counts 6 and 8; all of which to run consecutively to the sentence previously imposed. ECF No. 789.
This is Chann's first application for collateral relief under § 2255.
Mr. Chann contends that his convictions under 18 U.S.C. §§ 924(c) and 924(i) are invalid after Johnson, supra, which held that the residual clause definition of "crime of violence" in the Armed Career Criminal Act, § 924(e)(2)(B)(ii), is void for vagueness under the Due Process Clause.
Title 18 U.S.C. § 924(c) provides in pertinent part as follows:
18 U.S.C. § 924(c)(1)(A) (emphasis added).
The term "crime of violence" is defined as follows:
18 U.S.C. § 924(c)(3). The first clause, § 924(c)(3)(A), is known as the "force" or "elements" clause, and § 924(c)(3)(B) is known as the "residual clause."
The former 18 U.S.C. § 924(i) provides as follows:
18 U.S.C. § 924(j).3
In Johnson v. United States, the U.S. Supreme Court held that the residual clause of the Armed Career Criminals Act is void for vagueness. The provision at issue had required sentences of 15 years to life sentence in 18 U.S.C. § 922(g) felon-in-possession cases where the defendant had been convicted of three or more prior "violent felonies" - defined as felonies involving "conduct that presents a serious potential risk of physical injury to another." Johnson, 135 S. Ct. at 2255-56. The Supreme Court found that this definition of violent felony violates due processwhen used to require an enhanced sentence, because it does not give sufficient notice to defendants of the conduct that will support the enhancement, and because it invites arbitrary enforcement by judges. Id. at 2557. Only the ACCA's residual clause was held unconstitutional; the statute's alternate definitions of "violent felonies," including the definition based on the elements of the offense, remain in force. Id. at 2563. Johnson constitutes a new rule of substantive criminal procedure that applies retroactively to cases on collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
In Sessions v. Dimaya, 138 S. Ct. 1204 (2017), which affirmed the judgment of the Ninth Circuit, the Supreme Court applied Johnson to invalidate the Immigration and Nationality Act's incorporation of 18 U.S.C. § 16(b)'s residual clause. That statutory language defines a "crime of violence" as a felony "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." Dimaya, 138 S. Ct. at 1211. The Court found that because this language is impermissibly vague under Johnson, it cannot be incorporated into the INA's definition of an "aggravated felony" for purposes of mandatory deportation. Id. at 1223. Like Johnson, Dimaya involved a prior conviction that had been found to qualify as a crime of violence under the residual clause and not on the basis that an element of the offense involves the use of force. Id. at 1211 ( ).
In 1993, the Ninth Circuit held that conspiracy to commit Hobbs Act robbery constituted a crime of violence under § 924(c)'s residual clause. United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (). The Mendez court held that Hobbs Act conspiracy "violates § 924(c)(1) because by its nature it involves a substantial risk that physical force may be used against a person or property in the course of committing the offense." Id. at 1489.
//// The Supreme Court has now held that it violates due process to impose fixed sentencing consequences for a "violent crime" defined in these terms. See Dimaya, 138 S. Ct. at 1211, 1216 ( ).
The presiding district judge in this case, Hon. William B. Shubb, previously granted motions to dismiss brought by three other defendants in this case, who were before the district court on remand following direct appeal. See ECF No. 1659 (, ) ECF No. 1668; ECF No. 1698 ( ). Judge Shubb dismissed the § 924(c) counts against those defendants pursuant to Johnson. Id.
The law of the case doctrine generally precludes a court from reconsidering an issue that has been previously decided by the same court, or a higher court in the same case. United States v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997). For the doctrine to apply, the issue in question must have been decided either explicitly or by necessary implication in the prior disposition. Thomas v. Bible, 983 F.2d 152, 154 (9th Cir.), cert. denied, 508 U.S. 951 (1993). The doctrine is not a limitation on the court's power, but a guide to discretion. Arizona v. California, 460 U.S. 605, 618 (1983). It does not apply where there has been an intervening change in law. Old Person v. Brown, 312 F.3d 1036, 1039 (9th Cir. 2002).
Judge Shubb explicitly decided as to defendants Lattanaphom and Huynh that § 924(c)'s residual clause is void for vagueness, ECF No. 1659, and as to defendant Luong that conspiracy to commit Hobbs Act robbery cannot alternatively qualify as a crime of violence under the statute's force clause, ECF No. 1698. These are precisely the issues presented here. Accordingly, to the extent the law of the case doctrine applies,4 it strongly favors the same result for Chann.
Because the residual clause of § 924(c) is substantially similar to the residual clause of the ACCA, and identical to that of the INA and 18 U.S.C. § 16(b), many federal courts have held that § 924(c)'s residual clause is unconstitutionally vague under Johnson and Dimaya. See, e.g., United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018); United States v. Cardena, 842 F.3d 959, 995-96 (7th Cir. 2016), cert. denied, ...
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