United States v. Savage

• Decision Date: 12 January 2017
• Docket Number: Case No. LA CR 08–00258–VBF, Case No. LA CV 16–03864–VBF
• Parties: UNITED STATES of America, Plaintiff v. James Lewis SAVAGE, Defendant
• Court: U.S. District Court — Central District of California

231 F.Supp.3d 542

UNITED STATES of America, Plaintiff

v.James Lewis SAVAGE, Defendant

Case No. LA CR 08–00258–VBF

Case No. LA CV 16–03864–VBF

United States District Court, C.D. California.

Signed January 12, 2017

Jean–Claude Andre, AUSA–Office of US Attorney, Los Angeles, CA, for Plaintiff.

Rick D. Goldman, Federal Public Defender, Los Angeles, CA, for Defendant.

PROCEEDINGS (in chambers): Order Denying Habeas Motion (CV #1 and CR #27) for Lack of Merit; Directing Entry of Separate Final Judgment; Directing Separate Certificate of Appealability Ruling; Terminating and Closing the Civil Case

HONORABLE VALERIE BAKER FAIRBANK, SENIOR U.S. DISTRICT JUDGE

Represented by counsel, federal prisoner James Lewis Savage ("petitioner") initiated this action for a writ of habeas corpus pursuant to 28 U.S.C. section 2255. The Court has reviewed the habeas corpus motion and accompanying memorandum, the respondent government's opposition brief, the petitioner's reply brief, the underlying federal indictments and judgments of conviction, and the applicable law. For the reasons that follow, the Court will deny the habeas petition.

To begin with, the Court finds that the parties' briefs on both sides were excellent. Preliminarily, the Court agrees with petitioner that his habeas petition is not barred by the waiver of collateral-attack¹ rights in his plea agreement, is not procedurally defaulted, and is not untimely. See Petitioner's Opening Memorandum at 20–21 and Petitioner's Reply (Doc 18) at 14–36. The Court further agrees with petitioner that the residual clause of the Career Offender Guideline's definitional section, U.S.S.G. section 4B1.2(a), must be stricken as unconstitutionally vague after Johnson v. United States (U.S. 2015).

The Court will then determine, however, that the petition lacks merit because Savage's current conviction for federal unarmed bank robbery and his past convictions for federal unarmed and armed bank robbery all constitute "crimes of violence" by their nature for purposes of the Career Offender Guideline, U.S.S.G. section 4B1 (either with or without the application of Application Note ("Note") 1). The Court approves and adopts the government's opposition brief in this regard, see Doc 13 at 22–42. Consequently, the Court will conclude that in determining Savage's term of imprisonment, it was appropriate to begin with the higher range recommended for career offenders as this Court did in 2008. In other words, petitioner has failed to show that his career-offender sentence is the result of constitutional error or that it worked a manifest injustice, which means that he has not established a basis for federal habeas relief from his sentence. Accordingly, the Court will enter final judgment in favor of the respondent in the civil (habeas) case. The Court will, however, grant petitioner a certificate of appealability on all merits issues that it resolved adversely to him.

On February 29, 2008, an indictment issued charging him with one count of unarmed bank robbery in violation of 18 U.S.C. section 2113(a). See LA CR 08–00258–VBF Documents ("CR Docs") 8–10. The federal statute on Bank Robbery and Incidental Crimes, 18 U.S.C. § 2113, provides in part as follows:

(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or

Whoever enters of attempts to enter any bank, ... with intent to commit in such bank ... any felony affecting such bank ... and in violation of any statute of the United States, or any larceny

—Shall be fined under this title or imprisoned not more than twenty years, or both.

According to the Supreme Court, "subsection (a) contains no explicit mens rea requirement of any kind." Carter v. U . S . , 530 U.S. 255, 267, 120 S.Ct. 2159, 147 L.Ed.2d 203 (2000). "Properly applied, however, the presumption in favor of scienter demands ... that we read subsection (a) as requiring proof of general intent —that is, that the defendant possessed knowledge with respect to ... the taking of property of another by force and violence or intimidation."Id. at 268, 120 S.Ct. 2159.

The subsection specifically pertaining to armed Federal Bank Robbery further states as follows:

Whoever, in committing, or in attempting to commit, any offense defined in subsections (a) and of this section , assaults any person, or puts in jeopardy the life of any person by the use of a dangerous weapon or device , shall be fined under this title or imprisoned not more than twenty-five years, or both.

18 U.S.C. section 2113(d) (emphasis added).

SAVAGE'S PLEA AGREEMENT AND PRE–SENTENCE REPORT

On June 5, 2008, the parties filed their written plea agreement (CR Doc 18). On June 12, 2008, the Court conducted a plea colloquy and accepted petitioner's guilty plea to one count of unarmed bank robbery, see CR Doc 20 (Minutes). According to the plea agreement and Pre–Sentence Report ("PSR"), petitioner walked into a Bank of America in West Hollywood, California, on February 14, 2008 with a dark sweater wrapped around his left hand, approached a teller, and demanded cash. See PSR ¶ 11. The teller recounted that she was "fearful that [Savage] may have a gun under his sweater" and thus complied with his demand, giving him $3,775 in cash from her drawer. See PSR ¶ 12; see also generally U . S . v. Gordon , 642 F.3d 596, 598 (7th Cir. 2011) ("Intimidation exists when a bank robber's words and actions would cause an ordinary person to feel threatened, by giving rise to a reasonable fear that resistance or defiance will be met with force."), cited by U . S . v. Cunningham , 2016 WL 687902, *2 (N.D. Ill. Feb. 19, 2016). Police apprehended petitioner shortly after he left the bank and recovered the money and the sweater from him, but did not recover a gun, see PSR ¶ 12.

The agreement contained a provision waiving petitioner's right to "bring a post-conviction collateral attack on the conviction or sentence ... except ... based on ... an explicitly retroactive change in the applicable Sentencing Guidelines, sentencing statutes, or statutes of conviction." See Pet Exhibits ("Ex") C ¶ 17. In return, the government agreed to abide by the sentencing stipulation in the agreement and recommend that the Court subtract offense levels to reflect acceptance of responsibility. See Pet Ex C ¶ 15.

SAVAGE'S SENTENCE AND THE CAREER–OFFENDER GUIDELINE

The Ninth Circuit explains that the Career Offender Guideline "increases a defendant's advisory sentencing range if, as relevant here, the defendant has two or more prior convictions for a 'crime of violence.' " U . S . v. McCandless , 841 F.3d 819, 821 (9th Cir. 2016) (per curiam) (quoting U.S.S.G. section 4B1.1 ). Prior to sentencing, the U.S. Probation Office recommended that this Court determine that Savage qualified as a career offender under U.S.S.G. 4B1.1 because he had prior convictions for at least two crimes qualifying as crimes of violence as defined by the residual clause of the Career Offender Guideline, U.S.S.G. § 4B1.2(a).

At that time, there was no Supreme Court or Ninth Circuit precedent holding or suggesting that the residual clause of the Career Offender Guideline was void for vagueness or otherwise constitutionally infirm. Accordingly, the Court adopted Probation's recommendation, and used as its starting point the range of imprisonment terms that the Guidelines recommended for career offenders. (Savage had nine criminal-history points. Absent the career-offender designation, he would have had been in criminal history category IV; the career-offender designation placed him in criminal history category VI, the highest category. See PSR ¶¶ 54–56.

When petitioner Savage was sentenced on September 25, 2008, the Career Offender Guideline's main sentence-enhancement provision² stated in pertinent part as follows:

(a) a defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.

(b) Except as provided in subsection (c), if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from this table in this subsection shall apply. A career offender's criminal history category in every case under this subsection shall be Category VI.

Offense Statutory Maximum Offense Level*
                (A) Life                                             37
                (B) 25 years or more                                 34
                (C) 20 years or more, but less than 25 years         32
                (D) 15 years or more, but less than 20 years         29
                (E) 10 years or more, but less than 15 years         24
                (F) 5 years or more, but less than 10 years          17
                (G) More than 1 year, but less than 5 years          12
                * If an adjustment from section 3E1.1
                (Acceptance of Responsibility) applies
                decrease the offense level by the number
                of levels corresponding to that adjustment
                

* If an adjustment from section 3E1.1 (Acceptance of Responsibility) applies, decrease the offense level by the number of levels corresponding to that adjustment.

U.S.S.G. § 4B1.1(a) and (b) (2008). Guideline 4B1.1(c) has no application to petitioner's case, because it governs career offenders whose instant conviction is for a violation of 18 U.S.C. section 924(c) or 929(a). Application Note 1 to Guideline 4B1.1 provides that the term "crime of violence" is defined in Guideline 4B1.2.

In turn, the Career Offender Guideline in effect on Savage's sentencing date defined a "crime of violence" for...