United States v. Dean

• Decision Date: 15 March 2016
• Docket Number: Case No. 3:13-cr-00137-SI
• Parties: United States of America, Respondent, v. Frederic Russell Dean, Petitioner-Defendant.
• Court: U.S. District Court — District of Oregon

169 F.Supp.3d 1097

United States of America, Respondent,

v.Frederic Russell Dean, Petitioner-Defendant.

Case No. 3:13-cr-00137-SI

United States District Court, D. Oregon.

Signed March 15, 2016

Billy J. Williams, United States Attorney, and Kelly A. Zusman, Assistant United States Attorney, United States Attorney's Office for the District of Oregon, 1000 S.W. Third Avenue, Suite 600, Portland, OR 97204. Of Attorneys for Respondent United States of America.

Tiffany A. Harris, Attorney at Law, 811 S.W. Naito Parkway, Suite 500, Portland, OR 97204. Of Attorneys for Petitioner-Defendant.

OPINION AND ORDER

Michael H. Simon, District Judge.

On November 18, 2015, Defendant Frederic Russell Dean (“Dean”) moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Dean argues that the Supreme Court's recent decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), now establishes that the specific provision in the U.S. Sentencing Guidelines (the “Guidelines”) that significantly increased his base offense level is unconstitutionally vague and was adopted by the sentencing court in error. The Government agrees. The Government, however, opposes the motion. The Government argues that Dean's claim is barred by procedural default and that Johnson does not apply retroactively in his case. For the reasons set forth below, the Court grants the motion and will resentence Dean.

STANDARDS

Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move the court that imposed the sentence to vacate, set aside, or correct the sentence on the ground that:

[T]he 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). To warrant relief, a petitioner must demonstrate that an error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson , 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ; see also United States v. Montalvo , 331 F.3d 1052, 1058 (9th Cir.2003) (“We hold now that Brecht ' s harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.”).

A petitioner seeking relief under § 2255 must file his or her motion within the one-year statute of limitations set forth in § 2255(f). The limitations period runs one year from the latest of four dates: (1) when the judgment of conviction becomes final; (2) when the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) when the right asserted is initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; and (4) when the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2255(f).

Under § 2255, “a district court must grant a hearing to determine the validity of a petition brought under that section, ‘[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief.’ ” United States v. Blaylock , 20 F.3d 1458, 1465 (9th Cir.1994) (alteration and emphasis in original) (quoting 28 U.S.C. § 2255 ). In determining whether a § 2255 motion requires a hearing, “[t]he standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Withers , 638 F.3d 1055, 1062 (9th Cir.2011) (alteration in original) (quotation marks omitted). A district court may dismiss a § 2255 motion based on a facial review of the record “only if the allegations in the motion, when viewed against the record, do not give rise to a claim for relief or are ‘palpably incredible or patently frivolous.’ ” Id. at 1062–63 (quoting United States v. Schaflander , 743 F.2d 714, 717 (9th Cir.1984) ); see United States v. Hearst , 638 F.2d 1190, 1194 (9th Cir.1980). Conclusory statements in a § 2255 motion are insufficient to require a hearing. Hearst , 638 F.2d at 1194.

If a court denies a habeas petition, the court may issue a certificate of appealability if “jurists of reason could disagree with the district court's resolution of [the petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller – El v. Cockrell , 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) ; see 28 U.S.C. § 2253(c)(1). Although the petitioner is not required to prove the merits of his case, he must demonstrate “something more than the absence of frivolity or the existence of mere good faith on his or her part.” Miller – El , 537 U.S. at 338, 123 S.Ct. 1029 (quotation marks omitted).

BACKGROUND

A. Dean's Guilty Plea and Sentencing

On March 25, 2013, the Information was filed in this case charging Dean with one count of being a felon in possession of firearms, a violation of 18 U.S.C. § 922(g)(1). At the time of his offense, Dean was on supervised release in United States v. Fredric Russell Dean , Case No. 3:08–cr–00252–HA. In December 2012, a supervised release violation warrant was issued in that case for failure to participate in substance abuse treatment, among other violations. On March 4, 2013, U.S. Marshals found Dean at a residence and arrested him. A search warrant for the residence yielded two firearms that are the subject of the present charge. Both of the firearms had been reported stolen.

On February 10, 2014, Dean pleaded guilty to the single-count Information. In the plea agreement, Dean agreed to the following waiver of many of his rights to appeal and to file for post-conviction relief:

Waiver of Appeal/Post-Conviction Relief : Defendant knowingly and voluntarily waives the right to appeal from any aspect of the conviction and sentence on any grounds, except for a claim that: (1) the sentence imposed exceeds the statutory maximum, or (2) the Court arrives at an advisory sentencing guideline range by applying an upward departure under the provisions of Guidelines Chapters 4 or 5K, or (3) the Court exercises its discretion under 18 U.S.C. § 3553(a) to impose a sentence which exceeds the advisory guidelines sentencing range. Should defendant seek an appeal, despite this waiver, the USAO may take any position on any issue on appeal. Defendant also waives the right to file any collateral attack, including a motion under 28 U.S.C. § 2255, challenging any aspect of the conviction or sentence on any grounds, except on grounds on ineffective assistance of counsel, and except as provided in Fed. R. Crim. P. 33¹ and 18 U.S.C. § 3582(c)(2)² .

Dean and the Government jointly agreed to recommend a sentence of 60 months, to be followed by three years of supervised release. The Government further agreed to recommend a sentence at the low end of the advisory guideline revocation table for the supervised release violations in Case No. 3:08-cr-00252-HA, and to recommend that the sentence in that matter be served concurrently with the 60-month sentence in Dean's new case.

The U.S. Probation Office agreed with the parties' recommendation of 60 months imprisonment followed by a three-year term of supervised release. The U.S. Probation Office, however, noted that the new offense was Dean's third federal conviction and that he had a history of noncompliance on supervision. As a result, the U.S. Probation Office recommended that the sentence for the new offense be served consecutively to the sentence Dean receives for violating his supervised release in Case No. 3:08-cr-00252-HA. Under the Guidelines, “Any term of imprisonment imposed upon the revocation of probation or supervised release shall be ordered to be served consecutively to any sentence of imprisonment that the defendant is serving.” U.S.S.G. § 7B1.3(f). Under 18 U.S.C. § 3584, however, a sentencing court has the discretion impose a consecutive, concurrent, or partially concurrent sentence.

The U.S. Probation Office made the following calculations under the Guidelines:

Base Offense Level: 20

§ 2K2.1(a)(4)(A)—922(g), prior felony crime of violence

Specific Offense Characteristics: +2

§ 2K2.1(b)(4)(A)—stolen firearms

Acceptance of Responsibility: -3

§ 3E1.1

Total Offense Level: 19

With Dean's criminal history score of 13 points, he is in Criminal History category VI, producing an advisory sentencing range of 63 to 78 months.

In calculating Dean's base offense level, the U.S. Probation Office relied upon U.S.S.G. § 2K2.1(a)(4)(A), governing firearms offenses, which sets the base offense level at 20 if “the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” A “crime of violence” is defined for purposes of § 2K2.1(a)(4)(A) by the Career Offenders Guideline, § 4B1.2(a)(2), as “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that ... involves conduct that presents a serious potential risk of physical injury to another.” The Armed Career Criminal Act (the “ACCA”) defines the term “violent felony” in exactly the same manner that the Guidelines define “crime of violence.”³ See 18 U.S.C. § 924(e)(2)(B)(ii) (“the term ‘violent felony’ means any crime punishable by imprisonment for a term exceeding one year ... [that] involves conduct that presents a serious potential risk of physical injury to another”).

Dean had a prior state court conviction from 2005 for attempting to elude police while driving a vehicle. In Sykes v. United States , 564 U.S. 1, 131 S.Ct....