ORDER DENYING DEFENDANT'S MOTION TO VACATE SENTENCE (28 U.S.C. § 2255)

Docket No. 28.

EDWARD M. CHEN, District Judge.

Defendant Anteris Hicks has filed a petition for relief pursuant to 28 U.S.C. § 2255. Having considered the parties' briefs and accompanying submissions, the Court hereby DENIES his motion to vacate his sentence.

I. FACTUAL & PROCEDURAL BACKGROUND

Mr. Hicks was indicted for two separate counts of violation of 18 U.S.C. § 922(g)(1), felon in possession of a firearm. See 18 U.S.C. § 922(g)(1) (providing that "[i]t shall be unlawful for any person . . . who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year . . . to . . . possess in or affecting commerce, any firearm or ammunition").

A plea agreement was ultimately reached. See Docket No. 15 (plea agreement). In the plea agreement, Mr. Hicks agreed to plead guilty to count one of the indictment. See Docket No. 15 (Plea Agt. ¶ 1).

Mr. Hicks further agreed that he had previously been

Docket No. 15 (Plea Agmt. ¶ 2).

Finally, Mr. Hicks agreed that

Docket No. 15 (Plea Agmt. ¶ 7).

As indicated by the above, the Base Offense Level was calculated based on U.S.S.G. § 2K2.1, which is the applicable guideline for 18 U.S.C. § 922(g)(1) offenses. Under U.S.S.G. § 2K2.1, the Base Offense Level is 20 if, e.g., "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense." U.S.S.G. § 2K2.1(a)(4) (emphasis added).

The Presentence Report for Mr. Hicks indicated that the predicate prior felony conviction was that for grand theft. See Docket No. 16 (PSR ¶ 15) (referring to "Grand Theft From Person in San Francisco County Superior Court, Docket No.: 10037818"). The PSR mentioned only Mr. Hicks's prior grand theft conviction and not the prior controlled substance conviction.

II. DISCUSSION

Mr. Hicks's petition is predicated on Johnson v. United States, 135 S.Ct. 2551 (2015). There, the Supreme Court evaluated the constitutionality of a provision in the Armed Career Criminal Act of 1985 ("ACCA") pursuant to which "a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a `violent felony,' a term defined to include any felony that `involves conduct that presents a serious potential risk of physical injury to another.'" Id. at 2555 (quoting 18 U.S.C. § 924(e)(2)(B)) (emphasis added). The Court held that this "residual clause" (the italicized language) was unconstitutionally vague.

Mr. Hicks argues that the rationale in Johnson renders his sentence invalid. More specifically, Mr. Hicks notes that his Base Offense Level was based on his having previously committed a crime of violence (grand theft), and crime of violence is defined in the Sentencing Guidelines as follows:

U.S.S.G. § 4B1.2(a); see also U.S.S.G. § 2K2.1, Application Notes (stating that "`[c]rime of violence' has the meaning given that term in § 4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2"). In other words, the language deemed unconstitutional as part of the ACCA residual clause in Johnson is replicated in the Sentencing Guidelines that were applicable to Mr. Hicks.

In its opposition brief, the government makes multiple arguments: (1) that Mr. Hicks waived the right to file a § 2255 motion, (2) that Mr. Hicks procedurally defaulted his Johnson-based claim and cannot show cause and prejudice, (3) that the Johnson rule is not retroactive to challenges to the Sentencing Guidelines, and (4) that any Johnson error is ultimately harmless under the circumstances. For purposes of this order, the Court assumes that Mr. Hicks would prevail on the first three arguments. The Court thus addresses only the last argument. That is, assuming that Mr. Hicks's due process rights were violated, was that constitutional error harmless?

According to the government, any due process violation was harmless, thus rendering resentencing unnecessary, because the assessed Base Level Offense of 20 could have been based on Mr. Hicks having previously been convicted of a controlled substance offense rather than a crime of violence. See U.S.S.G. § 2K2.1(a)(4)(A) (providing for a Base Offense Level of 20 if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense") (emphasis added).

"Controlled substance offense" is defined in the Sentencing Guidelines as "an offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit substance) with intent to manufacture, import, export, distribute, or dispense." U.S.S.G. § 4B1.2(b); see also U.S.S.G. § 2K2.1, Application Note (providing that "`[c]ontrolled substance offense' has the meaning given that term in §4B1.2(b) and Application Note 1"). As indicated above, in the plea agreement, Mr. Hicks agreed that, "[o]n or about November 17, 2010, I was convicted of sale of a controlled substance in violation of California Health and Safety Code section 11352(a),1 . . . a crime punishable by a term of imprisonment exceeding one year." Docket No. 15 (Plea Agmt. ¶ 2); see also Opp'n, Ex. 2 (felony complaint charging Mr. Hicks with violating § 11352(a) "in that the said defendant did willfully and unlawfully import into the State of California, sell, furnish, administer, give away, and offer to import into the State of California, sell, furnish, administer, give away a controlled substance, to wit: COCAINE BASE SCHEDULE"). Given these circumstances, the Court agrees with the government that any Johnson error is harmless.

As an initial matter, the Court notes that numerous courts have applied harmless error analysis to Johnson. See United States v. Scott, 818 F.3d 424, 435 (8th Cir. 2016) (agreeing with the government that, "even if the district court erred by relying on the residual clause, the error was harmless since Scott's two domestic assault convictions and his robbery conviction also qualify as crimes of violence under clause (1), the `use of force' clause"); United States v. Jean, 636 Fed. Appx. 767, 770 (11th Cir. 2016) (noting that Johnson error would be disregarded if it was harmless "because it does not affect the sentence imposed"); United States v. Winston, No. 3:01-cr-00079, 2016 U.S. Dist. LEXIS 126751, at *18-19 (W.D. Va. Sep. 16, 2016) (applying harmless error review — "[e]ven applying Johnson I's narrowing of the force clause, robbery still qualified as a predicate offense [within another ACCA clause]"); Wiggan v. United States, No. 3:15-cv-447 (SRU), 2016 U.S. Dist. LEXIS 103746, at *45 (D. Conn. Aug. 5, 2016) (effectively applying harmless error review in concluding that, "[b]ecause the government failed to establish that Wiggan had at least three prior convictions that would qualify as violent felonies under the Elements Clause [i.e., instead of the unconstitutional Residual Clause], Wiggan has shown that actual prejudice resulted from his prior sentencing proceeding"); United States v. Ladwig, No. 2:03-CR-00232-RHW, 2016 U.S. Dist. LEXIS 92740, at *9-10 (E.D. Wash. June 28, 2016) (noting that the Johnson violation "would be harmless only if the Court's finding that Mr. Ladwig's attempted rape and burglary convictions constitute violent felonies could be justified under one of the two remaining effective clauses of the ACCA"); Lewis v. United States, No. 15-23059-CIV-SEITZ/WHITE, 2016 U.S. Dist. LEXIS 32700, at *7-8 (S.D. Fla. Mar. 11, 2016) (noting that, "[r]egardless of whether a district court relies on the ACCA's residual clause to enhance a sentence, there is no prejudicial error if the predicate offense also qualifies as a violent felony under the elements clause"). Although one court has suggested Johnson error is structural, see Villanueva v. United States, No. 16-CV-293 (JCH), 2016 U.S. Dist. LEXIS 75752, at *22-23 (D. Conn. June 10, 2016) (stating that "[t]aking the Residual Clause out of the equation so substantially alters the framework of ACCA that a Johnson violation can hardly be said to be anything other than `structural error,'" but going on to hold that, even if harmless error review applied, "the error was not harmless"), no appellate has so held and the district court opinion appears to be a minority view.

In his reply brief, Mr. Hicks does not argue that Johnson error is not subject to harmless error review. Furthermore, Mr. Hicks has not asserted that a Johnson error constitutes structural error, and therefore both arguments are waived. Furthermore, Mr. Hicks does not challenge the government's analysis that, under the modified categorical approach, his prior conviction for violating § 11352(a) constituted a conviction for a controlled substance offense, as defined in the Sentencing Guidelines. Nor does he contend that, if the § 11352(a) conviction were considered in calculating the Guideline range under U.S.S.G. § 2K2.1(a)(4)(A), that range would yield the same result as in the original PSR. Mr. Hicks simply argues that, under the government's position, he would get the same sentence "without having the U.S. Probation Office prepare a new PSR, permitting [him] to prepare to prepare a new sentencing memorandum, or holding a new sentencing hearing." Reply at 12. Since Mr. Hicks has not demonstrated or even meaningfully argued that the Guideline range would differ if the § 11352(a) conviction was considered, any Johnson error in this case is harmless. To the extent Mr. Hicks suggests that the Court should formally "delet[e] the illegal determination that [he] has committed a prior crime of violence," Reply at 12, he has failed to show that such a "correction" (assuming there was a Johnson violation) is necessary to protect his rights.

Accordingly, Mr. Hicks's motion for relief is denied.

This order disposes of Docket No. 28.

IT IS SO ORDERED.