United States v. Gentry
| Decision Date | 07 July 2016 |
| Docket Number | Case No. 3:12-cr-00604-SI |
| Citation | 194 F.Supp.3d 1073 |
| Parties | UNITED STATES of America, Respondent, v. Steven Wayne GENTRY, Petitioner–Defendant. |
| Court | U.S. District Court — District of Oregon |
Billy J. Williams, United States Attorney, and Johnathan S. Haub, 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.
Stephen R. Sady, Office of the Federal Public Defender, 101 SW Main Street, Suite 1700, Portland, Oregon 97204. Of Attorneys for Petitioner–Defendant.
On April 1, 2016, Defendant Steven Wayne Gentry ("Gentry") moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Gentry argues that the Supreme Court's decision in Johnson v. United States , 576 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 United States (the "Government") opposes the motion. The Government argues that Gentry's claim should be denied because: (1) Johnson does not apply retroactively in this case; (2) Gentry agreed in his plea agreement to waive post-conviction relief and that waiver is enforceable; (3) the motion is untimely under the Anti–Terrorism and Effective Death Penalty Act of 1996 ("AEDPA"); and (4) Gentry is procedurally barred from raising his claim. For the reasons set forth below, the Court rejects these arguments, grants Gentry's motion, and will resentence Gentry.
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) ().
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).
On March 12, 2013, the Superseding Information was filed in this case charging Gentry with three counts of bank robbery, two unarmed counts and one armed count, in violation of 18 U.S.C. § 2113(a) and (d). On April 2, 2013, Gentry pleaded guilty to the charges in the Superseding Information. In the plea agreement, Gentry 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 .
The parties agreed in the Plea Agreement that Gentry should be sentenced as a career offender under Guidelines § 4B1.1. The Government agreed to recommend a sentence in the low end of the advisory guideline range and to permit Gentry to seek an even lower sentence.
The U.S. Probation Office ("Probation") calculated Gentry's advisory guideline range as follows:
Base Offense Level (§ 2B3.31): 20
Specific Offense Characteristics
§ 2B3.1(b)(1) (loss to financial institute) +2
§ 2B3.1(b)(2)(C) (displayed firearm) +5
§ 3D1.4 (multiple counts) +2
__
Offense level without career offender 29
Offense level as career offender (§ 4B1.1) 34
Acceptance of Responsibility (§ 3E1.1): -3
Total Offense Level: 31
Because all parties agreed that Gentry would be sentenced as a career offender, his criminal history category was VI. See U.S.S.G. § 4B1.1(b) (). Probation also calculated Gentry's criminal history category without career offender designation, and it remained category VI. ECF 25 ¶ 58.
With Gentry's criminal history category VI, his offense level of 31 produced an advisory sentencing range of 188 to 235 months. Probation also recommended a three-level downward departure for diminished capacity (§ 5K2.13), for a resulting offense level of 28 and a Guidelines range of 140 to 175 months. Probation further recommended a downward variance based on the factors set forth in 18 U.S.C. § 3553(a). Probation recommended a variance equivalent to a three-level reduction in the Guidelines range, for the equivalent of an offense level of 25 and a Guidelines range of 110 to 137 months. Probation then recommended a sentence of 120 months.
The Government concurred with Probation's calculation of an offense level of 31, before departures other than acceptance of responsibility. The Government then recommended a one-level departure for agreed-upon concessions and a two-level departure for diminished capacity. This resulted in a proposed offense level of 28, with a Guidelines range of 140–175 months. The Government recommended concurrent 140–month sentences, although at the sentencing hearing the Government indicated that it also believed the 120–month sentence recommended by Probation was fair.
The Court adopted Probation's sentencing report without change. The Court considered the § 3553(a) factors and sentenced Gentry to 120 months imprisonment for each of the three charges, to be served concurrently, and to be followed by four years of supervised release.
The parties had agreed that Gentry qualified as a career offender under § 4B1.1(b) based on his previous conviction in 1999 for assault with a deadly weapon and his conviction in 2006 for evading an officer. ECF 25 ¶¶ 49, 51. The parties agreed that each of these crimes qualified as "crimes of violence" under § 4B1.2(a)(2). Gentry's...
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