United States v. Mobley

• Decision Date: 01 October 2018
• Docket Number: CASE NO. 12-cr-00235-YGR-1
• Citation: 344 F.Supp.3d 1089
• Parties: UNITED STATES of America, Plaintiff, v. Khusar MOBLEY, Defendant.
• Court: U.S. District Court — Northern District of California

344 F.Supp.3d 1089

UNITED STATES of America, Plaintiff,

v.Khusar MOBLEY, Defendant.

CASE NO. 12-cr-00235-YGR-1

United States District Court, N.D. California.

Signed October 1, 2018

James Craig Mann, United States Attorney's Office Northern District of California United States Attorney's Office, Oakland, CA, Natalie Lee, U.S. Attorney's Office, San Francisco, CA, for Plaintiff.

ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

Re: Dkt. No. 229

Yvonne Gonzalez Rogers, United States District Court JudgeBefore the Court is movant Khusar Mobley's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C § 2255. (Dkt. No. 229.)¹ The government opposed the motion. (Dkt. No. 260.) Having considered all of the papers filed by the parties, the record in this case, and for good cause shown, the Court DENIES the motion.

I. BACKGROUND

A. Procedural Background

On October 23, 2013, following a jury trial, Mobley was convicted of (i) Conspiracy to Commit Robbery of Mail, Money, or Other Property of the United States and Assault on a Federal Officer in violation of 18 U.S.C. § 371 (Count One); (ii) Assault on a Federal Officer in violation of 18 U.S.C. § 111(b) (Count Two); (iii) Robbery of Mail, Money, or Other Property of the United States in violation of 18 U.S.C. § 2114(a) (Count Three); and (iv) Using, Carrying, Possessing, and Brandishing a Firearm During, in Relation to, and in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c) (Count Four). Mobley was sentenced to 147 months in prison. (Dkt. No. 184.) His sentencing range was calculated to be 51-63 months, based on a total offense level for Group 1 (Counts One through Three) of 22 and a criminal history category of III, plus an additional 84-month mandatory consecutive term for the Count 4 conviction.

On October 28, 2013, Mobley filed a notice of appeal, challenging the sufficiency of the evidence introduced to support the convictions, as well as the legality of the 147-month sentence imposed by this Court. See Dkt. No. 181; see also United States v. Mobley , 803 F.3d 1105, 1106 (9th Cir. 2015). On October 15, 2015, the Ninth Circuit affirmed Mobley's conviction in a published decision, rejecting Mobley's sufficiency challenges. Mobley , 803 F.3d at 1108–10. That same day, the Ninth Circuit rejected Mobley's sentencing arguments in an unpublished memorandum disposition. See United States. v. Mobley , 620 F. App'x 591 (9th Cir. 2015). On March 21, 2016 the Supreme Court denied Mobley's certiorari petition as to the former Ninth Circuit ruling. Mobley v. United States , ––– U.S. ––––, 136 S.Ct. 1452, 194 L.Ed.2d 556 (2016).

After briefing on the instant motion was complete, the parties raised with the Court the potential impact of the Supreme Court's then-pending decision in Sessions v. Dimaya , No. 15-1498 on Mobley's motion. In light of Dimaya , the parties suggested the proper course would be to submit a joint statement within two weeks of the Supreme Court's decision, setting out whether additional briefing would be necessary, and if so, the parties' proposed schedule and page limits for such briefing. (Dkt. No. 269.) This Court agreed and subsequently stayed the proceedings on Mobley's motion pending the Supreme Court's ruling in Dimaya . (Dkt. Nos. 270, 273.) The Supreme Court issued its ruling on April 17, 2018, and the parties stipulated to submit supplemental briefs to the Court addressing the impact of Dimaya on Mobley's motion. (Dkt. 281.) They each did so on May 15, 2018, and the Court has reviewed and considered the briefing. (Dkt. Nos. 283, 284.)

B. Johnson v. United States

In Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II "), the Supreme Court addressed a challenge to the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), which provides that a defendant with three prior "violent felony" convictions faces a fifteen-year mandatory-minimum sentence if convicted of violating 18 U.S.C. § 922(g). The ACCA's residual clause definition of "violent felony" encompasses any crime that "involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).

The Johnson II Court held that the residual clause is so vague that it "both denies fair notice to defendants and invites arbitrary enforcement by judges." 135 S.Ct. at 2557. Namely, "[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. at 2558. Accordingly, the Johnson II Court held that an increase to a defendant's sentence under that clause "denies due process of law." Id. In Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson II is retroactive as applied to the ACCA.

C. Sessions v. Dimaya

In Sessions v. Dimaya , ––– U.S. ––––, 138 S.Ct. 1204, 200 L.Ed.2d 549 (2018), the Supreme Court confronted a similar vagueness issue in the context of immigration. Specifically, the Dimaya Court was asked to determine whether 18 U.S.C. § 16(b), which is included on a list of aggravated felonies that can result in an alien's removal, is unconstitutional under the reasoning of Johnson II . Dimaya , 138 S.Ct. at 1210–12. Like Section 924(e)(2)(B)(ii), Section 16(b) is a definitional provision, which defines "crime of violence" in terms close to those in the ACCA's residual clause: "The term ‘crime of violence’ means ... any other offense that is a felony and 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." 18 U.S.C. § 16(b).²

The Dimaya Court held that the residual clause definition of a "crime of violence" in Section 16(b) is unconstitutionally vague for the same reasons it found the residual clause definition of a "crime of violence" in the ACCA unconstitutionally vague in Johnson II —because "it requires a court to picture the kind of conduct that the crime involves in ‘the ordinary case,’ and to judge whether that abstraction presents some not-well-specified-yet-sufficiently-large degree of risk." Id. at 1216 (internal quotation marks omitted). The Dimaya Court therefore held that Section 16(b) is invalid since it "produces, just as ACCA's residual clause did, more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. (internal quotation marks omitted).

II. LEGAL STANDARD

A prisoner in custody under sentence of a federal court, making a collateral attack against the validity of his or her own conviction or sentence, must do so by way of a motion to vacate, set aside, or correct the sentence pursuant to section 2255 in the court that imposed the sentence. Tripati v. Henman , 843 F.2d 1160, 1162 (9th Cir. 1988). Under 28 U.S.C. § 2255, a federal sentencing court may grant relief if it concludes that a prisoner in custody was sentenced in violation of the Constitution or laws of the United States.

III. DISCUSSION

Mobley's motion hinges on an argument that neither the crime of (i) assault on a federal officer in violation of 18 U.S.C. § 111(b) nor (ii) robbery of mail, money, or other property of the United States in violation of 18 U.S.C. § 2114(a) qualifies as a "crime of violence" after Johnson II and Dimaya .³ If they are not crimes of violence, then neither can serve as a predicate offense for his mandatory-minimum sentence under 18 U.S.C. § 924(c).

In response, the government asserts four arguments. First, assault on a federal officer in violation of 18 U.S.C. § 111(b) and robbery of mail, money, or other property of the United States in violation of 18 U.S.C. § 2114(a) remain crimes of violence under Section 924(c)'s "elements clause" after Johnson II and Dimaya . Second, and accordingly, the Court need not consider whether the crimes also qualify as predicate offenses under Section 924(c)'s "residual clause." Third, Mobley's claim that Section 924(c)'s "residual clause" is void for vagueness is procedurally barred in any event. Finally, Section 924(c)'s "residual clause" is at any rate not void for vagueness.

This Court begins its analysis with the threshold issue of whether assault on a federal officer under 18 U.S.C. § 111(b) (Count 2) or robbery of mail, money, or other property of the United States under 18 U.S.C. § 2114(a) (Count 3) remain crimes of violence after Johnson II and Dimaya . For Mobley to be subject to a sentence enhancement under 18 U.S.C. § 924(c)(1)(A) (Count 4), at least one predicate offense must have been a crime of violence.

A. Legal Framework for "Crime of Violence" Analysis

Section 924(c)(1)(A) provides for certain penalties for a person "who, during and in relation to any crime of violence ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." 18 U.S.C. § 924(c)(1)(A). Under Section 924(c)(3), a "crime of violence" in this context means:

an offense that is a felony and (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or (B) 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.

18 U.S.C. § 924(c)(3) (emphasis supplied). Subsection (A) of Section 924(c)(3) is commonly referred to as the "elements clause,"⁴ and subsection (B) is referred to as the "residual clause."⁵ The Court employs that terminology herein.

To determine whether an offense qualifies as a "crime of violence" under Section 924(c)(3), the Ninth Circuit applies the "categorical approach" set forth in Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990). Thus, a court mus...