Vichitvongsa v. United States, 3:17-cv-01329

• Decision Date: 11 June 2020
• Docket Number: NO. 3:17-cv-01329,3:17-cv-01329
• Parties: MANILA VICHITVONGSA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of Tennessee

MANILA VICHITVONGSA, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

NO. 3:17-cv-01329

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION

June 11, 2020

JUDGE CAMPBELL

MEMORANDUM

I. Introduction

Pending before the Court are Petitioner's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (Doc. Nos. 1, 2); an Amended Motion to Vacate, Suspend or Set Aside Sentence Under 28 U.S.C. § 2255 (Doc. No. 10), filed by counsel for Petitioner; a Second Amended Motion to Vacate, Suspend or Set Aside Sentence Under 28 U.S.C. § 2255 (Doc. No. 31); the Government's Response (Doc. No. 17); Petitioner's Reply (Doc. No. 18); Petitioner's Supplemental Briefs (Doc. Nos. 22, 23, 24, 25, 27, 28, 32); Petitioner's Motion for Modification of Sentence Pursuant to Supreme Court Decision in U.S. v. Davis (Doc. No. 46); the Government's Position on Effect of Supreme Court's Davis Decision (Doc. No. 49); and Petitioner's [Supplemental] Reply (Doc. No. 52).

For the reasons set forth herein, Petitioner's Motions to Vacate (Doc. Nos. 1, 2, 10, 31) and Motion for Modification (Doc. No. 46) are GRANTED in part, and DENIED in part. Accordingly, the Court will vacate Petitioner's convictions for violations of 18 U.S.C. § 924(c) and enter an amended judgment in Criminal Case No. 3:12-cr-00013. The Clerk of Court is directed to file a copy of this Memorandum and Order in Criminal Case No. 3:12-cr-00013.

Petitioner's Motion for Evidentiary Hearing (Doc. No. 19), and Motions for Hearing (Doc. Nos. 26, 53) are DENIED, for the reasons set forth herein.

II. Petitioner's Criminal Proceedings

Petitioner was indicted, along with seven other defendants, on charges arising out of two separate home invasion robberies - the first, occurring on June 10, 2011, in La Vergne, Tennessee, and the second, occurring on June 27, 2011, in Smith County, Tennessee. (Doc. Nos. 78, 1012 in Case No. 3:12-cr-00013). In connection with each home invasion robbery, the Indictment charged Petitioner with participating in a conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951; participating in a conspiracy to engage in drug trafficking, in violation of 21 U.S.C. § 846; and two counts charging a violation of 18 U.S.C. § 924(c),¹ each based on one of the charged conspiracies. (Doc. No. 78 in Case No. 3:12-cr-00013).

After a week-long trial, before now-retired Judge Todd J. Campbell, Petitioner was convicted on all counts. (Doc. Nos. 730, 732 in Case No. 3:12-cr-00013). The Sixth Circuit summarized the evidence adduced at trial, as follows:

Within the span of two weeks in June 2011, defendant Vichitvongsa planned and executed two armed robberies (in LaVergne and Smith County, Tennessee) with several co-conspirators with the hopes of stealing hundreds of thousands of dollars and large amounts of illegal drugs from two drug dealers. Each robbery was violent. They ransacked houses, restrained and beat victims, and shot one man in the chest. Neither robbery accomplished what defendant and his co-conspirators intended; they failed to locate money and drugs, and instead resorted to stealing a few miscellaneous items.

The LaVergne Robbery

On June 11, 2011, defendant met several co-conspirators outside a restaurant in suburban Nashville. There they planned to rob the residence of Chris Leggs, a cocaine dealer. Leggs's residence was in LaVergne, a neighboring suburb. They believed it contained hundreds of thousands of dollars and several kilograms of cocaine. Co-conspirator Nickless Whitson came up with the idea to rob the house, and he and defendant told the others about the amount of money and cocaine they expected to be at the house.

The co-conspirators then drove to the house. Two caused a distraction, while the others forced their way inside. Four carried guns, including defendant. They threatened and assaulted the sole occupant, Dominique Baker, and tied her up while they ransacked the house. After searching for money and drugs for 30 to 45 minutes to no avail, they took a few guns and jewelry, and left.

The Smith County Robbery

About two weeks after the LaVergne robbery, Vichitvongsa and others concocted a plan to rob Daniel Crowe's house, a marijuana dealer in Smith County, Tennessee. William Byrd had purchased marijuana from Crowe to sell on a by-the-pound basis. Byrd, who did not play a role in the LaVergne robbery, told defendant that he was 'under the impression that there was a large amount of money' at Crowe's house, '[a]round $300,000.' Although Byrd never told defendant there was marijuana at Crowe's house, defendant told others there would be extensive amounts of marijuana there. Defendant indicated he wanted to rob the house, and a few days before the robbery, Byrd escorted Whitson and defendant to the house for reconnaissance purposes.

On June 27, 2011, the robbers met at a Home Depot, purchased zip ties, and caravanned to Crowe's residence. Four, including defendant, entered the house—armed—while two remained outside. They tied up Crowe's mother and stepfather, Lorraine and William Webb, and began searching the house. The robbers threatened to harm the Webbs, with one suggesting they light Lorraine Webb on fire. William Webb eventually freed himself and lunged with a plastic sheath at a robber, who shot him in the chest. Others fired shots as well. The robbers fled shortly thereafter, taking items they found in the house—including guns and grow lamps—in the Webbs's car.

United States v. Vichitvongsa, 819 F.3d 260, 264-65 (6th Cir. 2016)

At the subsequent sentencing hearing, Judge [Todd] Campbell imposed a total sentence of 1,219 months of imprisonment on the eight counts of conviction, as follows:

• Count 1 (Hobbs Act robbery conspiracy) - 235 months, concurrent with Counts 3, 5 and 7;

• Count 2 (Section 924(c) - Brandishing - linked to Hobbs Act conspiracy) - 84 months, consecutive to Counts 1, 3, 5 and 7;

• Count 3 (Drug trafficking conspiracy) - 235 months, concurrent with Counts 1, 5 and 7;

• Count 4 (Section 924(c) - Brandishing - linked to drug trafficking conspiracy) - 300 months, consecutive to Counts 1, 2, 3, 5 and 7;

• Count 5 (Hobbs Act robbery conspiracy) - 235 months, concurrent with Counts 1, 3 and 7;

• Count 6 (Section 924(c) - Discharge - linked to Hobbs Act conspiracy) - 300 months, consecutive to Counts 1, 2, 3, 4, 5 and 7;

• Count 7 (Drug trafficking conspiracy) - 60 months, concurrent with Counts 1, 3 and 5; and

• Count 8 (Section 924(c) - Discharge - linked to drug trafficking conspiracy) - 300 months, consecutive to all other Counts.

(Doc. Nos. 896; 897, 958 in Case No. 3:12-cr-00013).

On appeal, the Sixth Circuit rejected Petitioner's arguments based on insufficiency of theevidence and the Double Jeopardy Clause, but sustained his challenge to the four Section 924(c) convictions, holding that "the simultaneous violation of two federal conspiracy statutes cannot support two § 924(c) charges on the sole basis of one firearm use." United States v. Vichitvongsa, 819 F.3d at 264; (Doc. No. 1012, at 2, in Case No. 3:12-cr-00013). The court remanded the case with instructions to vacate one of Petitioner's Section 924(c) convictions for each home invasion. Id.

On remand, Judge [Todd] Campbell ordered the parties to file briefs stating their positions on the Sixth Circuit's remand instructions. (Doc. No. 1029 in Case No. 3:12-cr-00013). Both parties requested the court vacate the two Section 924(c) counts that were linked to the drug trafficking conspiracy offense, specifically, Counts 4 and 8. (Doc. Nos. 1030, 1031 in Case No. 3:12-cr-00013). Judge Campbell granted the parties' request, and entered an Amended Judgment (Doc. Nos. 1034, 1035 in Case No. 3:12-cr-00013), vacating Counts 4 and 8, and reducing Petitioner's sentence by 600 months to a total sentence of 619 months of imprisonment.

III. Analysis

A. Section 2255 Proceedings

Petitioner has brought this action pursuant to 28 U.S.C. § 2255. Section 2255 provides a statutory mechanism for challenging the imposition of a federal sentence:

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, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). In order to obtain relief under Section 2255, a petitioner "'must demonstratethe existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.'" Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)).

If a factual dispute arises in a § 2255 proceeding, the court is to hold an evidentiary hearing to resolve the dispute. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2013). An evidentiary hearing is not required, however, if the record conclusively shows that the petitioner is not entitled to relief. 28 U.S.C. § 2255(b); Ray, 721 F.3d at 761; Arredondo v. United States, 178 F.3d 778, 782 (6^th Cir. 1999). A hearing is also unnecessary "'if the petitioner's allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Monea v. United States, 914 F.3d 414, 422 (6th Cir. 2019) (quoting Valentine v. United States, 488 F.3d 325, 333 (6^th Cir. 2007)).

Having reviewed the record in Petitioner's underlying criminal case, as well as the filings in this case, the Court finds it unnecessary to hold an evidentiary hearing because disposition of Petitioner's claims does not require the resolution of any factual dispute.

B. Petitioner's Claims

Through his ...