United States v. Givens

• Decision Date: 01 August 2017
• Docket Number: 2:03–cr–00350–LRH–PAL
• Citation: 268 F.Supp.3d 1108
• Parties: UNITED STATES of America, Plaintiff, v. Antonio GIVENS, Defendant.
• Court: U.S. District Court — District of Nevada

268 F.Supp.3d 1108

UNITED STATES of America, Plaintiff,
v.
Antonio GIVENS, Defendant.

2:03–cr–00350–LRH–PAL

United States District Court, D. Nevada.

Signed August 1, 2017

Eric Johnson, Kathleen Bliss, Paul S. Padda, Amber M. Craig, Camille W. Damm, Peter S. Levitt, Phillip N. Smith, Jr., U.S. Attorney's Office, Las Vegas, NV, for Plaintiff.

ORDER

LARRY R. HICKS, UNITED STATES DISTRICT JUDGE

Before the court is petitioner Antonio Givens' motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. ECF No. 1836. The United States filed a response (ECF No. 1858), to which Givens replied (ECF No. 1861). With the court's leave, the parties filed supplemental briefing addressing the impact of Beckles v. United States , ––– U.S. ––––, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017) on Givens' claim for relief under Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). ECF Nos. 1902, 1906–07.

The court holds that, even if the void-for-vagueness doctrine applies to sentences rendered before the U.S. Sentencing Guidelines ("U.S.S.G.") became discretionary, Givens still qualifies as a career offender under U.S.S.G. § 4B1.1 without reliance on that guideline's former "residual clause." Specifically, the court finds that the guideline's commentary is authoritative and that the court may therefore compare Givens' two Nevada attempted robbery convictions to both generic robbery and extortion. Because these offenses are a categorical match under Ninth Circuit precedent, Givens is not entitled to relief from the sentencing court's application of the career-offender guideline.

Similarly, the court finds that Hobbs Act robbery is categorically a crime of violence under the "force clause" of 18 U.S.C. § 924(c). In turn, even if section 924(c)'s residual clause is void for vagueness, Givens is not entitled to relief from his section 924(c) conviction. His motion will therefore be denied as to both claims for relief, but the court will issue a certificate of appealability.

I. Background

A. Givens' conviction

On May 13, 2004, Givens pled guilty to one count of conspiracy to engage in Racketeering Influenced Corrupt Organization ("RICO") under 18 U.S.C. § 1962(d) and one count of the use of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). ECF No. 333. The United States also charged Givens with one count of interference with commerce by robbery under 18 U.S.C § 1951 ("Hobbs Act robbery") (ECF No. 253 at 44–45), but pursuant to the parties' plea agreement, the United States moved to dismiss this count (ECF No. 334 at 2).

On December 27, 2004, a different court within this district ("sentencing court")¹

268 F.Supp.3d 1111

sentenced Givens to 165 months of imprisonment on the RICO count, as well as a consecutive 7 years on the section 924(c) count. ECF Nos. 532, 552 at 2.

B. Johnson v. United States and subsequent challenges

Givens filed his section 2255 motion in the wake of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). There, the U.S. Supreme Court ruled that a portion of the Armed Career Criminal Act's ("ACCA") violent-felony definition, often referred to as the residual clause, was unconstitutionally vague (i.e., "void for vagueness").² Johnson , 135 S.Ct. at 2557. The Supreme Court subsequently held that Johnson announced a new substantive rule that applied retroactively to cases on collateral review, Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), thus allowing defendants to challenge their ACCA convictions under section 2255.

Moreover, Johnson also sparked challenges to other federal criminal statutes and sections of the Sentencing Guidelines that incorporate a crime-of-violence definition that includes a residual clause similar or identical to the ACCA's. For instance, as in this case, petitioners have challenged the application of the career-offender enhancement under U.S.S.G. § 4B1.1, which, until recently, included a residual clause identical to the ACCA's. The Supreme Court, however, recently ruled in Beckles v. United States that "the advisory Sentencing Guidelines, including [U.S.S.G.] § 4B1.2(a)'s residual clause, are not subject to a challenge under the void-for-vagueness doctrine." 137 S.Ct. at 896 (emphasis added).

Similarly, petitioners convicted of the use of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c) have also challenged their convictions under Johnson. Although a challenge to this specific statute has yet to reach the Supreme Court, it granted certiorari this past term in Dimaya v. Lynch , 803 F.3d 1110 (9th Cir. 2015), cert. granted , ––– U.S. ––––, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016). There, the Ninth Circuit addressed a challenge to the residual clause found in 18 U.S.C. § 16(b), which contains a residual clause identical to the one contained within section 924(c) but not identical to the ACCA residual clause at issue in Johnson. Dimaya , 803 F.3d at 1111–12. The Ninth Circuit ultimately held that section 16(b)'s clause was also void for vagueness. Id. at 1119. Although the Supreme Court heard oral arguments in Dimaya earlier this year, it set the case for re-argument for its next term. Sessions v. Dimaya , 137 S.Ct. 31.

And while a challenge directly to section 924(c) is currently before the Ninth Circuit, the court has deferred ruling on the issue until the Supreme Court decides Dimaya. United States v. Begay , No. 14–10080, ECF No. 87 (9th Cir. 2017); see also United States v. Begay , 2016 WL 1383556 (9th Cir. 2016).

II. Legal standard

Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or

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correct a sentence if "the sentence was imposed in violation of the Constitution or laws of the United States, or ... the court was without jurisdiction to impose such sentence, or ... the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Id. § 2255(b).

Section 2255 creates a one-year statute of limitations. Id. § 2255(f). When a petitioner seeks relief pursuant to a right recognized by a U.S. Supreme Court decision, the statute of limitations runs from "the date on which the right asserted was initially recognized by the ... Court, if that right has been ... made retroactively applicable to cases on collateral review ...." Id. § 2255(f)(3). The petitioner bears the burden of demonstrating that his petition is timely and that he is entitled to relief. Ramos–Martinez v. United States , 638 F.3d 315, 325 (1st Cir. 2011).

III. Discussion

Givens' section 2255 motion challenges both the application of the career-offender guideline to his sentence and his conviction under 18 U.S.C. § 924(c). Although both challenges stem from Johnson v. United States , they raise unique issues that the court will address separately.

As an initial matter, the court notes that the categorical approach applies throughout this analysis. Traditionally, the categorical approach is an analytical framework that sentencing courts must apply in determining whether a defendant's prior state or federal offenses mandate a sentence enhancement by satisfying the violent-felony definition under the ACCA. See Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). The analysis also applies to calculating a convicted defendant's sentencing range when his conduct invokes a guideline that implicates a crime-of-violence definition. See, e.g. , United States v. Becerril–Lopez , 541 F.3d 881 (9th Cir. 2008). Additionally, "the Ninth Circuit has consistently held that the categorical analyses apply to § 924(c) crime-of-violence determinations both at trial and at sentencing ‘without regard to whether the given offense is a prior offense or the offense of conviction [i.e., a concurrently-charged offense].’ "³ United States v. Smith , 215 F.Supp.3d 1026, 1032 (D. Nev. 2016) (quoting United States v. Piccolo , 441 F.3d 1084, 1086 (9th Cir. 2006) ).

Under the categorical approach, a court may only "compare the elements of the statute forming the basis of the defendant's [prior] conviction [or concurrently-charged offense] with the elements of" a violent felony or crime of violence. Descamps v. United States , 570 U.S. 254, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013) (emphasis added); see also United States v. Benally , 843 F.3d 350, 352 (9th Cir. 2016). Therefore, a court may not examine "[h]ow a given defendant actually perpetrated the crime—what [the Supreme Court has] referred to as the ‘underlying brute facts or means’ of commission ...."

268 F.Supp.3d 1113

Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 2251, 195 L.Ed.2d 604 (2016)...