United States v. Kinman
| Decision Date | 20 October 2016 |
| Docket Number | Case No.: 06cr2609-2 JM,Case No.: 16cv1360 JM |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. KRISTOPHER KINMAN (02), Defendant. |
| Court | U.S. District Court — Southern District of California |
This matter comes before the court on Defendant Kristopher Kinman's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 149.) Defendant's motion is based on the Supreme Court's holding in Johnson v. United States, 135 S. Ct. 2551 (2015). After careful consideration of the arguments presented, the court denies Defendant's motion.1
In 1997, Defendant was convicted of robbery under California Penal Code section 211 ("California robbery"). In 2002, he was convicted of drug trafficking. And on September 26, 2008, he pled guilty to two counts of distributing five or more grams of methamphetamine. The court sentenced Defendant on those two counts on February 13, 2009. The court determined that Defendant qualified as a career offender, finding that his prior conviction for California robbery qualified as a crime of violence as defined by the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines") section 4B1.2. Because Defendant qualified as a career offender based on his two previous convictions, his total offense level increased from 29 to 31. With a criminal history category of VI, Defendant's status as a career offender caused his Guidelines range to increase from 151-188 months to 188-235 months. The court granted a downward departure and varied further downward, eventually imposing a sentence of 144 months on each count, to run concurrently.
As part of his plea deal, Defendant agreed to waive, "to the full extent of the law," any right to collaterally attack his conviction and sentence. Accordingly, Defendant did not appeal his conviction or sentence. But on June 25, 2015, the Supreme Court decided Johnson, which invalidated the residual clause of the Armed Career Criminal Act's ("ACCA") definition of violent felony. 135 S. Ct. at 2557-60. Because section 4B1.2(a) of the Guidelines ("the Career Offender Guidelines") employs an identical residual clause in defining crime of violence, Defendant filed the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 on June 3, 2016.2
Section 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence." If the court determines that relief is warranted under section 2255, it must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).
The Career Offender Guidelines require courts to increase the offense level of a "career offender." Section 4B1.1(a) defines a career offender as a defendant who "has at least two prior felony convictions of either a crime of violence or a controlled substance offense."3 Section 4B1.2(a) of the November 1, 2008, Guidelines, which were in use at the time of Defendant's sentencing,4 defined a "crime of violence" as:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or (2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Section 4B1.2(a)(1) is typically referred to as the "force" or "elements" clause. The first portion of section 4B1.2(a)(2), which lists four enumerated offenses, is typically referred to as the "enumerated offenses" clause. The second portion of section 4B1.2(a), beginning with the words "or otherwise," is typically referred to as the "residual clause." See, e.g., United States v. Crews, 621 F.3d 849, 852 (9th Cir. 2010). Thus, under the Career Offender Guidelines in use at the time of Defendant's sentencing, there were three ways a conviction could qualify as a crime of violence: (1) under the force/elements clause, (2) as a match for one of the four enumerated offenses, or (3) under the residual clause.
Defendant argues that because Johnson invalidated the ACCA's residual clause, it must also have invalidated the Career Offender Guidelines' residual clause, and it must apply retroactively. Therefore, Defendant argues, California robbery is not a predicate crime of violence because it (a) no longer falls within the residual clause, (b) does not qualify under the force/elements clause, and (c) is not one of the four enumerated offenses, and if California robbery is not a predicate crime of violence, the court erred in determining that he was a career offender based on that conviction. Defendant notes that without this alleged error, his total offense level would have been 29 rather than 31, and his Guidelines range would have been 151-188 months rather than 188-235 months.
Before the court may address the merits of Defendant's claim, it must first determine whether the terms of Defendant's plea agreement preclude this motion. Indeed, Defendant waived, "to the full extent of the law," any right to collaterally attack his conviction and sentence. But the Ninth Circuit has held that this type of waiver does not apply if the sentence violates the law. United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). In fact, the Ninth Circuit recently addressed this exact question, stating that if Johnson nullifies the residual clause of the Career Offender Guidelines, sentences rendered pursuant to that clause are likely unconstitutional, and thus waivers in pleaagreements cannot bar collateral attacks on that basis. United States v. Torres, 828 F.3d 1113, 1125 (9th Cir. 2016); see also United States v. Dean, No. 3:13-CR-00137-SI, 2016 WL 1060229, at *4 n.6 (D. Or. Mar. 15, 2016) (); but see United States v. Inoshita, No. 15-00159 JMS, 2016 WL 2977237, at *4 (D. Haw. May 20, 2016) ().
Here, Defendant asserts that his sentence was imposed under the now arguably unconstitutional residual clause of the Career Offender Guidelines. Thus, pursuant to Bibler and Torres, the court finds that the waiver in Defendant's plea agreement does not bar this motion.
The court must also consider whether Plaintiff has procedurally defaulted his section 2255 motion by failing to appeal his sentence. The most obvious reason that Defendant did not appeal his sentence is that Defendant was complying with his plea agreement. Even disregarding this fact, however, the court finds that cause for the default and prejudice both exist in this case. Therefore, Defendant has overcome the general rule that "claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice." Massaro v. United States, 538 U.S. 500, 504 (2003).
The Supreme Court has held that cause is found when "the factual or legal basis for a claim was not reasonably available to counsel" at the time a direct appeal could have been filed. Murray v. Carrier, 477 U.S. 478, 488 (1986). Thus, there is no procedural default based on a failure to file a direct appeal if the appeal "would have been futile, because a solid wall of circuit authority" precluded that appeal. English v. United States,42 F.3d 473, 479 (9th Cir. 1994) (internal quotations and citations omitted); see also Kimes v. United States, 939 F.2d 776, 778 (1991) ().
Here, Johnson expressly overruled prior Supreme Court cases upholding the ACCA's residual clause. Thus, before Johnson, vagueness challenges to the residual clauses in the ACCA—and by extension the Career Offender Guidelines—were foreclosed by the Supreme Court decisions in James v. United States, 550 U.S. 192 (2007), and Sykes v. United States, 131 S. Ct. 2267 (2011). Accordingly, Defendant has demonstrated cause for his procedural default.
Defendant must also demonstrate prejudice by showing that the alleged error "worked to his actual and substantial disadvantage . . . ." United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007). In this case, even though the Guidelines are advisory, and the court imposed a sentence below the applicable Guidelines range, the court is cognizant of the Ninth Circuit's proclamation that "the Guidelines are the 'starting point and the initial benchmark' of sentencing, and the failure [to] accurately . . . state the Guidelines range at the onset [would] derail[] the sentencing proceeding before it even began." United States v. Doe, 705 F.3d 1134, 1154 (9th Cir. 2013) (quoting Kimbrough v. United States, 552 U.S. 85, 108 (2007)). As the Supreme Court put it, "[e]ven if the sentencing judge sees a reason to vary from the Guidelines, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense the basis for the sentence." Peugh v. United States, 133 S. Ct. 2072, 2083 (2013) (emphasis...
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