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United States v. Pyle

United States District Court, D. New Mexico

April 4, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
WILLIAM P. PYLE, Defendant/Movant. Cr. No. 91-545 JB

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on Defendant William P. Pyle's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Civ. Doc. 1)[1], filed June 16, 2016. Defendant asks the Court to vacate his sentence on the basis that two of the three convictions the sentencing Court relied on to enhance his sentence no longer qualify as violent felonies under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson II”).[2]The first is an Oregon conviction for second degree robbery. The second is a Florida conviction for battery on a law enforcement officer (BOLEO). The United States counters that, before the Court can consider Defendant's attack on his underlying convictions, Defendant must demonstrate that the sentencing Court relied on the residual clause of the ACCA to enhance his sentence. Civ. Doc. 7. Defendant's failure to do so, the United States further asserts, is fatal to Defendant's motion. Id. United States District Court Judge James O. Browning referred this matter to me for proposed findings and a recommended disposition on July 25, 2016. Civ. Doc.2.

         Having reviewed the submissions of the parties, the record, and the relevant law, I recommend that the Court grant Defendant's motion on the basis that his prior Florida conviction for battery on a law enforcement officer (BOLEO) does not qualify as a violent felony for enhancement purposes under the ACCA. I further recommend that the Court re-sentence Defendant.

         I. Factual Background and Procedural History

         On November 8, 1991, a federal grand jury charged Defendant with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). CR. Doc. 1. On April 6, 1992, the United States notified Defendant that he was subject to an enhanced sentence under the ACCA because he had three prior violent felony convictions. CR. Doc. 14. The United States indicated that it intended to seek a minimum sentence of fifteen years imprisonment pursuant to the ACCA rather than a maximum sentence of ten years imprisonment pursuant to 18 U.S.C. § 924(a)(2). Id.

         On April 13, 1992, a jury convicted Defendant of being a felon in possession of a firearm and the case proceeded to sentencing on June 24, 1992. CR. Docs. 20-21. At sentencing, the Court adopted the factual findings and guideline applications set forth in the presentence report (“PSR”). CR. Doc. 30. Among these findings, the Court determined that Defendant had three prior felony convictions for crimes of violence: (1) a 1976 conviction in Oregon for robbery in the second degree; (2) a 1982 conviction in New Mexico for armed robbery and (3) a 1989 conviction in Florida for battery of a law enforcement officer (BOLEO). Id. Absent application of the ACCA, Defendant's base offense level was 12 and his criminal history category was V, thereby establishing a guideline imprisonment range of 27 to 33 months. Id. Based on Defendant's prior convictions, however, the Court found that Defendant was subject to a statutory minimum sentence of fifteen years imprisonment under the ACCA, an enhanced sentencing guideline offense level of 33, and a criminal history category of VI. Id. This application of the ACCA catapulted Defendant's guideline imprisonment range to between 235 and 293 months. Id.

         The Court sentenced Defendant to a term of imprisonment of 235 months followed by three years of supervised release. Id. In 1993, the Tenth Circuit Court of Appeals affirmed Defendant's conviction. CR. Doc. 35. On July 22, 2016, the Tenth Circuit granted Defendant authorization to file this second or successive § 2255 motion to assert a claim for relief based on Johnson II. CR. Doc. 43.

         II. Applicable Law

         The ACCA provides that an individual who violates 18 U.S.C. § 922(g) and has three prior convictions for a “violent felony” or a “serious drug offense” is subject to a minimum sentence of fifteen years imprisonment. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony” as follows:

         any crime punishable by imprisonment for a term exceeding one year . . . that--

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another; . . .

18 U.S.C. § 924(e)(2)(B) (emphasis added). Subpart (i) of this definition is known as the “force clause” or “elements clause”; the non-italicized portion of Subpart (ii) is known as the “enumerated clause” and the italicized portion of Subpart (ii) is known as the “residual clause.” See Johnson II, 135 S.Ct. at 2556; See United States v. Harris, 844 F.3d 1260, 1263 (10th Cir. 2017). In Johnson II, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague, but left its force and enumerated clauses intact. 135 S.Ct. at 2563. The Supreme Court subsequently held that Johnson II announced a new substantive rule that applies retroactively on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1264-65 (2016). Thus, Defendant may challenge the Court's enhancement of his sentence pursuant to the ACCA's residual clause by way of a motion under 28 U.S.C. § 2255. See Brace v. United States, 634 F.3d 1167, 1169 (10th Cir. 2011) (stating that a motion under 28 U.S.C. § 2255 “is generally the exclusive remedy for a federal prisoner seeking to attack the legality of detention.” (internal citation and alterations omitted)).

         To determine whether a prior conviction qualifies as a violent felony under the ACCA, courts generally apply the categorical approach, which looks only to the elements of the offense, expressly barring consideration of the actual facts underlying the defendant's prior conviction. See Harris, 844 F.3d at 1264-65; United States v. Smith, 652 F.3d 1244, 1246 (10th Cir. 2011). Courts must presume that a prior conviction “rested upon nothing more than the least of the acts criminalized” by the state statute. See Moncrieffe v. Holder, 133 S.Ct. 1678, 1684 (2013) (internal quotation marks and citation omitted). In determining this minimum level of culpable conduct, the Court is limited to such conduct in which there is a “realistic probability, not a theoretical possibility” the state statute would apply. Id. at 1685. “Decisions from the state supreme court best indicate a ‘realistic probability, ' supplemented by decisions from the intermediate-appellate courts.” Harris, 844 F.3d at 1264. To satisfy the categorical approach, “it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA. Rather, the proper inquiry is whether the conduct encompassed by the elements of the offense, in the ordinary case, qualifies under the ACCA as a violent felony.” Smith, 652 F.3d at 1246 (emphasis added). When a statute includes multiple alternate elements that create distinct versions of a crime, the Court may employ the “modified categorical approach.” See Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). “Under that approach, a sentencing court looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of.” Id.

         Defendant's 1976 Oregon conviction for second degree robbery and his 1989 Florida BOLEO conviction are not one of the enumerated offenses set forth in § 924(e)(2)(B)(ii). Thus, the elements clause provides the only avenue through which Defendant's ACCA enhancement can survive. As a result, the Court must ask whether either the Florida or Oregon offense, or both, has “as an element the use, attempted use, or threatened use of physical force against the person of another.”[3] See § 924(e)(2)(B)(i). “This inquiry requires application of both federal law and [ ] state law. Federal law defines the meaning of the phrase ‘use, attempted use, or threatened use of physical force' in § 924(e)(2)(B)(i). And state law defines the substantive elements of the crime of conviction.” Harris, 844 F.3d at 1264 (internal citations and quotation marks omitted).

         III. Analysis

         Before I reach the merits of Defendant's § 2255 motion, I address two threshold issues the United States has raised. The first issue relates to the timeliness of Defendant's motion. A defendant has one year from the time the Supreme Court announces a new substantive rule to file a motion under § 2255. See 28 U.S.C. § 2255(f). The new substantive rule the Supreme Court announced in 2015 when it decided Johnson II relates to the residual clause only. Thus, Johnson II only provides Defendant a mechanism for relief if he was sentenced under the ACCA's residual clause rather than one of its other two clauses. The United States argues that Defendant's § 2255 motion must fail because Defendant has not established that the Court sentenced him under the ACCA's residual clause.

         The second threshold issue concerns whether the Supreme Court's decision in Johnson v. United States, 559 U.S. 133 (2010) (“Johnson I”), applies retroactively. In Johnson I, the Supreme Court concluded that battery in Florida is not a violent crime for ACCA purposes. Defendant's sentencing, of course, occurred many years before the Supreme Court decided Johnson I. Thus, Defendant's argument that Johnson I precludes application of the elements clause as an alternative to the residual clause can only succeed if Johnson I is applied retroactively.

         a. Defendant need only show that the sentencing court may have relied on the residual clause in order to seek § 2255 relief under Johnson II

         The United States argues that Defendant is ineligible for relief under Johnson II because he has failed to meet his burden of establishing that his sentence was enhanced under the clause with which Johnson II dealt - the ACCA's residual clause. See Resp. at 4-7 (Civ. Doc. 7).

         Noting that a defendant carries a heavier burden on a second or successive § 2255 motion and that this is Defendant's second or successive § 2255 motion, the United States argues that Defendant must provide “specific and particularized evidence” demonstrating that he was sentenced under the residual clause. Id. at 5. Accepting this argument would, in this case, place a particularly high hurdle in front of Defendant. This is because, as the United States acknowledges (Id. at 5-6), the record from Defendant's underlying criminal case is silent as to whether his sentence was enhanced pursuant to the residual clause or the elements clause. There is no existing transcript or recording of Defendant's 1992 sentencing hearing and recent efforts by the Court to obtain this information were unsuccessful.[4] In addition, the judgment entered in the criminal case does not specify which ACCA clause the sentencing Court applied - it only states that Defendant was subject to an enhanced sentence under the ACCA due to “three prior felony convictions for crimes of violence.” Cr. Doc. 30 at 2. Likewise, the enhancement information the United States filed and the presentencing memorandum (PSR) are both silent on this issue. Cr. Doc. 14; Civ. Doc. 6-1. In short, the silence in the record prevents Defendant from establishing that the Court sentenced him pursuant to the residual clause rather than the elements clause. The United States argues that, because Defendant carries the burden of proving his entitlement to relief, this inability is fatal to his claim.

         The position taken by the United States regarding Defendant's burden of proof is based not on any specific guidance from the Tenth Circuit Court of Appeals, but, in part, on a 2016 panel decision from the Eleventh Circuit Court of Appeals, In re Moore, 830 F.3d 1268 (11th Cir. 2016). As the United States recognizes, however, there have been conflicting decisions issued by the Eleventh Circuit on this issue. See In re Chance, 831 F.3d 1334 (11th Cir. 2016); see also Leah M. Litman, Shakeer Rahman, What Lurks Below Beckles, 111 Nw. U.L. Rev. Online 69, 84-86 (2016) (noting that the Eleventh Circuit “appears to be internally divided on what amounts to a prima facie showing” for § 2255 habeas relief under Johnson II and discussing inconsistent rulings from various panels). The differing approaches taken in Moore and Chance are characteristic of the different approaches federal district courts have taken when analyzing the merits of a second or successive § 2255 motion seeking relief based on Johnson II.

         The panels in Moore and Chance agreed insofar as they each permitted the petitioner before them to file a second or successive § 2255 habeas application on the basis of Johnson II. Moore, 830 F.3d at 1269, 1273; Chance, 831 F.3d at 1336. They drastically differed, however, with regard to what the district court should do upon receiving the petition. Like the present case, the record in Moore failed to reveal what ACCA clause the sentencing judge relied on to enhance the defendant's sentence. Id. at 1272; see also Id. at 1271-73. This absence of information, the Moore panel concluded, doomed the defendant's petition. The panel wrote:

the district court cannot grant relief in a § 2255 proceeding unless the movant meets his burden of showing that he is entitled to relief, and in this context the movant cannot meet that burden unless he proves that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence. If the district court cannot determine whether the residual clause was used in sentencing and affected the final sentence-if the court cannot tell one way or the other-the district court must deny the § 2255 motion. It must do so because the movant will have failed to carry his burden of showing all that is necessary to warrant § 2255 relief.

Id. at 1273 (emphasis added).

         The panel in Chance disagreed. 831 F.3d at 1338. It criticized the Moore panel's suggestion that “the district court must make the inmate prove whether or not [he] was sentenced under the residual clause” as pure dicta that was “quite wrong” for two reasons. Id. at 1340-42 (quotation marks omitted). First, it concluded that the Moore panel's approach implies that a district judge “can ignore decisions from the Supreme Court that were rendered since [the time of sentencing] in favor of a foray into a stale record.” Id. at 1340. The panel stated that under the Moore panel's rule, “a defendant could not benefit from that binding [Supreme Court] precedent except in the rare circumstances where the sentencing judge thought to make clear that she relied on the residual clause. That is not right.” Id. Second, the Chance panel found that the Moore panel's rule would lead to “selective application” that would “violate the principle of treating similarly situated defendants the same” because only those cases where the sentencing judge “uttered the magic words ‘residual clause'” would be ...


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