United States v. Rogers
| Decision Date | 01 April 2016 |
| Docket Number | Case No. 14-CR-234-JPS |
| Citation | 179 F.Supp.3d 881 |
| Parties | United States of America, Plaintiff, v. Aquinus S. Rogers, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
Benjamin W. Proctor, United States Department of Justice, Milwaukee, WI, for Plaintiff.
Anderson M. Gansner, Federal Defender Services of Wisconsin Inc., Milwaukee, WI, for Defendant.
J.P. Stadtmueller
This case comes before the Court on Aquinas S. Rogers' (“Rogers”) motion to reconsider his mandatory transfer to adult criminal prosecution. (Docket #38). On January 12, 2016, the Court entered an Order holding Rogers' motion in abeyance pending further briefing. (Docket #48). Specifically, the Court requested that the parties brief the issue of whether Rogers' previous juvenile conviction for Armed Robbery with Threat of Force, as Party to a Crime, in violation of Wis. Stats. §§ 943.32(2)
and 939.05,1 qualifies the defendant for transfer under 18 U.S.C. § 5032 in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015).2
As discussed more fully herein, the Court concludes that a juvenile conviction for Armed Robbery with Threat of Force, as Party to a Crime, indeed qualifies Rogers for mandatory transfer because that statutory offense has as an element, the use, threatened use, or attempted use of physical force. See 18 U.S.C. § 5032
; Wis. Stat. §§ 943.32(2), 939.05. And, because Johnson did not effect the language of Section 5032 that the Court relies on for the purpose of this holding—i.e ., the “force clause” of Section 5032—the Court has no basis from which to conclude that Johnson prohibits and/or affects Rogers' mandatory transfer. Moreover, though it is not necessary to this decision, the Court also finds that Rogers must be transferred to adult prosecution because his previous juvenile conviction is the state law equivalent of federal armed robbery—18 U.S.C. § 2111
—which is an enumerated offense under Section 5032. Accordingly, Rogers' motion for reconsideration will be denied. (Docket #38).
On December 5, 2014, the government filed a juvenile information charging Rogers with attempted armed bank robbery and brandishing a firearm during, and in relation to, a crime of violence. (Docket #1). Rogers had not yet turned 18 at the time. (Docket #1). Thus, the government moved for mandatory transfer of the proceedings against Rogers to adult prosecution, pursuant to 18 U.S.C. § 5032
. (Docket #6). Rogers opposed that motion (Docket #12), and the Court heard oral argument from the parties on the matter (Docket #17).
Ultimately, the Court granted the government's motion and transferred Rogers' proceedings to adult criminal prosecution. (Docket #18). The government then indicted Rogers (Docket #20), and several months later Rogers pled guilty (Docket #28, #30). After pleading guilty, Rogers requested and received two adjournments of his sentencing hearing. (Docket #34, #35, #36, #37). His latest sentencing date was scheduled for January 14, 2016. (Docket #37).
However, before sentencing occurred, Rogers moved the Court to reconsider the transfer of this case to adult criminal prosecution. (Docket #38). Specifically, Rogers argued that Johnson, 135 S.Ct. at 2653, undermined the propriety of his mandatory transfer because this Court—at least in part—had relied on language in Section 5032
that is “virtually identical” to the definition of “crime of violence” embodied in both 18 U.S.C. § 16 and in the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B) (hereinafter “the ACCA”). (Docket #18 at 6); see also
United States v. M.C.E. , 232 F.3d 1252, 1256–57 (9th Cir.2000) (citing Taylor v. United States , 495 U.S. 575, 600–02, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ); Impounded , 117 F.3d 730, 738 n. 12 (3d Cir.1997). Since Johnson had deemed a portion of the ACCA's “crime of violence” definition—i.e ., which is most commonly known as the “residual clause”3 —unconstitutional, the defendant asked the Court to reassess whether Rogers' currently-charged offense and prior juvenile conviction could still support transfer under Section 5032. (Docket #38); see also
On January 12, 2016, the Court attempted to streamline the resolution of the pending motion by: (1) providing an overview of the arguments and legal issues implicated by the motion to reconsider; (2) clarifying that Johnson
did not affect the Court's conclusion that the first and second requirements4 for mandatory transfer were satisfied, respectively; and (3) ordering further briefing with respect to the third requirement for mandatory transfer. (See generally Docket #48). More precisely, the Court requested the parties to brief whether, in light of the Supreme Court's Johnson , 135 S.Ct. at 2551
, decision, Rogers' previous juvenile conviction for Armed Robbery with Threat of Force, as Party to a Crime, in violation of Wis. Stat. §§ 943.32(2) and 939.05, qualifies Rogers for mandatory transfer under Section 5032. (Docket #48 at 12).
As explained in the Court's January 12, 2016 Order, transfer under Section 5032
is mandatory if:
18 U.S.C. § 5032
; (see also Docket #48 at 3).
Though the first and second requirements for transfer are not disputed at this juncture (see Docket #48), the third requirement—which relates to the nature of the juvenile's prior conviction—is at issue.
This Court has previously determined that the third requirement for transfer under Section 5032
is satisfied if the juvenile's previous offense is one that: (1) has, as an element thereof, the use, attempted use, or threatened use of force (hereinafter, the “force clause”); (2) involves a substantial risk that physical force would be used in its commission (hereinafter, the “residual clause”); or (3) is convicted of a state law crime which is equivalent to one of several enumerated offenses in the statute. 18 U.S.C. § 5032 ; (see also Docket #48 at 4). In other words, the third requirement is satisfied if the juvenile defendant earlier committed a state or federal crime that—just like the crime that is the subject of the current charges—either has an element of force, involves a substantial risk of the use of force, or is one of the listed offenses.5
See, e.g. ,
; David H. , 29 F.3d at 493–94 ; JNK, 1999 WL 427153, at *2, 187 F.3d 638 (6th Cir.1999).
As referenced above, Section 5032
contains language that is “virtually identical” to the definition of “crime of violence”6 embodied in both 18 U.S.C. § 16 and in the ACCA, 18 U.S.C. § 924(e)(2)(B). See
M.C.E. , 232 F.3d at 1256–57 ; Impounded , 117 F.3d at 738 n. 12. More specifically, the ACCA's definition of violent felony is satisfied when the crime being considered: (1) has an element of physical force; (2) is an enumerated offense; or (3) involves a substantial risk of the use of force. See 18 U.S.C. § 924(e)(2)(B). The last of those provisions—for crimes “involv[ing] conduct that presents a serious potential risk of physical injury to another,” 18 U.S.C. § 924(e)(2)(B)(ii) —has “come to be known as the [ACCA]'s residual clause.” Johnson , 135 S.Ct. at 2555–56.
The Court ordered further briefing on the question presented by Rogers because Johnson
might undermine one of the possible avenues for satisfying the third requirement for mandatory transfer. (Docket #48 at 5). This is because in Johnson, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague. Johnson , 135 S.Ct. at 2555–56. What is more, the Seventh Circuit has recently held that the residual clause embodied in 18 U.S.C. § 16 is also unconstitutionally vague under the reasoning of Johnson.7
United States v. Vivas
–
Ceja , 808 F.3d 719, 723 (7th Cir.2015).
Importantly, however, Johnson
did not address the constitutionality of the language which falls under the ACCA's “force clause” or “elements clause.” See, e.g. , 135 S.Ct. at 2563 ; United States v. Yang , 799 F.3d 750, 751 & n. 1 (7th Cir.2015) (); United States v. Johnson , No. 14–10390, 634 Fed.Appx. 227, 2015 WL 7740578, at *6 (11th Cir. Dec. 2, 2015) (). Thus, the Court has no basis from which to conclude that the force clause in Section 5032 has been called into question. Indeed, the parties do not argue that Johnson undermines the propriety of mandatory transfers which are supported by juvenile convictions which involve the use, attempted use, or threatened use of physical force.
In sum, in light of the legal developments in Johnson
and Vivas
–
Ceja, the government does not rely—and, therefore, nor will the Court—on the residual clause embodied in Section 5032 when determining whether Rogers' juvenile conviction qualifies him for transfer to adult prosecution. (See Docket #13). Accordingly, Rogers' juvenile conviction can only support mandatory transfer under the third requirement of Section 5032 if either: (1) it has as an element the use, attempted use, or threatened use of physical force—i.e ., it satisfies the...
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