MICHAEL P. SHEA, District Judge.
Theodore Tobias has filed a motion to vacate his sentence under 28 U.S.C. § 2255 ("Section 2255"). On July 26, 2000, Judge Dominic J. Squatrito sentenced Mr. Tobias to 270 months of imprisonment as a result of convictions after a jury trial for Hobbs Act Robbery under 18 U.S.C. § 1951(a), conspiracy to commit Hobbs Act Robbery under 18 U.S.C. § 1951, and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) ("Section 924(c)"). Applying the 1998 edition of the then-mandatory U.S. Sentencing Guidelines (the "Guidelines"), later made advisory by the Supreme Court's landmark decision in United States v. Booker, 543 U.S. 220 (2005) ("Booker"), Judge Squatrito determined that Mr. Tobias's prior robbery convictions qualified as crimes of violence under the residual clause of the Guidelines' career offender provision, U.S.S.G. § 4B1.2 ("Section 4B1.2"). Mr. Tobias was therefore considered a career offender under U.S.S.G § 4B1.1 ("Section 4B1.1") and subject to an enhanced Guidelines range of 270-322 months of imprisonment. Judge Squatrito sentenced Mr. Tobias to 270 months (22 ½ years), the bottom of the Guidelines range, along with 3 years of supervised release. Mr. Tobias is currently incarcerated at FCI Fairton, with an estimated release date in December of 2017.
Mr. Tobias now argues that the residual clause of the mandatory Guidelines' career offender provision is void for vagueness under the recent Supreme Court cases of Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson") and Welch v. United States, 136 S.Ct. 1257 (2016) ("Welch"), and that his claim is not barred by the even more recent case of Beckles v. United States, 137 S.Ct. 886 (2017) ("Beckles"). Johnson held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), was void for vagueness under the due process clause. Welch made the rule in Johnson retroactive to cases on collateral review. Finally, Beckles held that the residual clause of Section 4B1.2 of the advisory Guidelines was not void for vagueness, because the advisory Guidelines are not subject to vagueness challenges. Separately, Mr. Tobias argues that his conviction for use of a firearm during a crime of violence should be vacated, because Hobbs Act Robbery is not a crime of violence under Section 924(c).
For the reasons explained below, Mr. Tobias's Section 2255 petition is DENIED. The residual clause of Section 4B1.2 of the mandatory, pre-Booker Guidelines is not void for vagueness as applied to Mr. Tobias, because the authoritative commentary to the 1998 Guidelines expressly designated robbery as a crime of violence. And Hobbs Act Robbery qualifies as a crime of violence under Section 924(c) and Second Circuit precedent.
On November 11, 1997, Mr. Tobias robbed an attendant at the registration desk of the Fairfield Inn in Windsor Locks, Connecticut, stealing $269 at gunpoint. (Pre-Sentence Report ("PSR"), ECF No. 28 ¶¶ 7-10.) The police arrested him the same day. (Id. ¶ 11.) On June 11, 1999, a federal jury found Mr. Tobias guilty of Hobbs Act Robbery under 18 U.S.C. § 1951(a), conspiracy to commit Hobbs Act Robbery under 18 U.S.C. § 1951, and use of a firearm during a crime of violence, in violation of 18 U.S.C. § 924(c) ("Section 924(c)"). (ECF No. 1-1.)
In advance of sentencing, the U.S. Probation Office prepared a Pre-Sentence Report ("PSR"). The PSR described Mr. Tobias's prior Connecticut state convictions, including convictions for first and second degree robbery. (PSR ¶¶ 33, 37.) Based on these convictions, and relying on the 1998 edition of the Guidelines Manual,
(Id. ¶ 27.)
Under Section 4B1.1, to qualify as a career offender, the defendant must have "at least two prior felony convictions of either a crime of violence or a controlled substance offense." The 1998 Guidelines defined a "crime of violence" as follows:
Section 4B1.2. Clause 1 ("has as an element. . .") is known as either the "force clause" or the "elements clause." The beginning of clause 2 ("is burglary . . . explosives") is known as the "enumerated clause." The end of clause 2 ("or otherwise involves . . .") is known as the "residual clause." The commentary to Section 4B1.2 (note 1) in the 1998 Guidelines Manual further explained that "`Crime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." (emphasis added).
Based on the career offender enhancement, the Probation Office calculated a total offense level of 32. (PSR ¶¶ 27-29.) (Without the enhancement, the Probation Office calculated an offense of 22. (Id. ¶ 26.)) Given an offense level of 32 and a criminal history category of VI, the Probation Office determined a Guidelines range of 210-262 months of imprisonment on the Hobbs Act robbery and conspiracy convictions, plus a consecutive 60 months on the Section 924(c) count. (Id. ¶ 82.) Mr. Tobias's resulting "effective" Guidelines range was 270-322 months. (Id.)
On July 26, 2000, Judge Squatrito sentenced Mr. Tobias to a total of 270 months of imprisonment, 3 years of supervised release, and a $300 special assessment. (ECF No 1-1.) Judgment was entered on August 7, 2000. (Id.) Mr. Tobias appealed, but the Court of Appeals affirmed, United States v. Tobias, 33 F. App'x 547 (2d Cir. 2002), and the U.S. Supreme Court denied his petition for a writ of certiorari. Tobias v. United States, 538 U.S. 933 (2003).
On January 23, 2006, Mr. Tobias filed a pro se "application for writ of audita querela," arguing that he was entitled to resentencing under Booker. (Case 3:06-cv-123, ECF No. 1.) Judge Squatrito denied the writ on February 7, 2006, stating that the petition "patently lack[ed] merit." (Id., ECF No. 2.) On January 7, 2013, Mr. Tobias filed a pro se "Letter-Motion, Actual Innocence Claim." (Id., ECF No. 8.) Judge Squatrito construed this filing as a motion for relief under Section 2255, and denied it on July 15, 2013, because Mr. Tobias had "not alleged any specific constitutional error" and had "not identified any `new reliable evidence'" that would support an innocence claim. (Id., ECF No. 9.)
On June 26, 2015, the Supreme Court in Johnson held that the residual clause of the ACCA was void for vagueness, in violation of the Due Process Clause of the Fifth Amendment. On April 18, 2016, the Supreme Court in Welch held that Johnson had announced a new substantive rule that applied retroactively on collateral review. Relying on those cases, on May 24, 2016, Mr. Tobias filed a motion for leave to file a successive Section 2255 motion with the Court of Appeals, and on June 26, 2016, filed the Section 2255 motion in this case. (ECF Nos. 1, 3.) Mr. Tobias argued that his sentence for Hobbs Act robbery and conspiracy should be vacated in light of Johnson, because the residual clause of Section 4B1.2 was identical to the residual clause of the ACCA, and that his conviction under Section 924(c) should also be vacated. (ECF No. 1.)
On September 12, 2016, the Court of Appeals granted Mr. Tobias leave to file a successive petition, writing:
(ECF No. 8.) The Court of Appeals directed me to stay the proceeding, pending a decision by the Supreme Court in Beckles, "in which the Supreme Court will likely decide whether Johnson applies retroactively to United States Sentencing Guidelines § 4B1.2(a)(2)." (Id.)
The Supreme Court decided Beckles on March 6, 2017, holding that "the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause." Beckles, 137 S. Ct. at 890. Both Justice Ginsburg and Justice Sotomayor concurred in the judgment, explaining that they would have decided the case on the ground that the residual clause was not void for vagueness as applied to the petitioner, because "the official commentary to the career-offender Sentencing Guideline expressly designated his offense of conviction—possessing a sawed-off shotgun as a felon—a `crime of violence.'" Id. at 897-98 (Ginsburg, J, concurring); see also id. (Sotomayor, J., concurring) ("Johnson affords Beckles no relief, because the commentary under which he was sentenced was not unconstitutionally vague.") Justice Sotomayor also noted that the Court had "at least [left] open the question whether defendants sentenced to terms of imprisonment before our decision in United States v. Booker... may mount vagueness attacks on their sentences." Id. at 903, n.4 (Sotomayor, J, concurring).
I lifted the stay in this case on May 2, 2017. The parties submitted briefing on the Section 2255 petition (ECF Nos. 15, 16, 20), and presented oral argument on August 14, 2017.
As a preliminary matter, the government does not appear to dispute that Mr. Tobias's career offender enhancement was based on a finding that his prior robbery convictions qualified as crimes of violence under the residual clause of Section 4B1.2. Based on the available record, I agree. It is more likely than not that Mr. Tobias was sentenced under the residual clause. The PSR, citing the two robbery convictions, stated only that "the defendant has at least two felony convictions." (PSR ¶ 27.) "[T]he absence of any discussion . . . concerning under which of the... subsections [petitioner's] assault convictions qualified, [is] strong circumstantial evidence that the court used the most obvious path . . . the broad-sweeping Residual Clause." Villanueva v. United States, 191 F.Supp.3d 178, 184 (D. Conn. 2016).
The central question in this case is whether, applying the reasoning of Johnson, the residual clause of the career offender provision of the mandatory, pre-Booker Guidelines was void for vagueness. I conclude that, as applied to Mr. Tobias, it was not.
At the time of Mr. Tobias's sentencing, the residual clause of the career offender provision of the mandatory Guidelines was identical to the residual clause of the ACCA, which Johnson would later find unconstitutionally vague. The ACCA defined "violent felony" as:
18 U.S.C. § 924(e)(2)(B) (residual clause in italics). The career offender provision of the Guidelines defined "crime of violence" as:
Section 4B1.2 (1998) (residual clause in italics).
However, the career offender provision of the 1998 Guidelines differed from the ACCA in an important respect. The commentary to Section 4B1.2, note 1, explained that, "`[c]rime of violence' includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling." (emphasis added).
In light of the 1998 commentary's clear statement that robbery was a "crime of violence," Section 4B1.2 was not unconstitutionally vague as applied to Mr. Tobias. Under the Due Process Clause of the Fifth Amendment, the government cannot "tak[e] away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson, 135 S. Ct. at 2556. "These principles apply not only to statutes defining elements of crimes, but also to statutes fixing sentences." Id. at 2557. Here, with robbery specifically listed as a crime of violence in the binding commentary, it cannot be said that Mr. Tobias lacked "fair notice" that he could be subject to the career offender provision based on his two robbery convictions,
This conclusion follows the logic of both Justice Ginsburg and Justice Sotomayor in their concurrences in Beckles.
Beckles, 137 S. Ct. at 897-98 (Ginsburg, J., concurring) (citations, quotation marks, and alteration omitted). Justice Sotomayor agreed:
Id. at 898 (Sotomayor, J., concurring). Just as the petitioner in Beckles, Mr. Tobias was sentenced under commentary interpreting the residual clause of Section 4B1.2, which "expressly designated" robbery as a crime of violence. Therefore, Section 4B1.2 was not unconstitutionally vague as applied to him.
Prior to the Beckles decision, some courts approached this issue differently, finding that the residual clause, standing alone, was unconstitutionally vague, and once it was removed, the list of offenses in the commentary had to be disregarded as inconsistent with the text of Section 4B1.2. See, e.g. United States v. Johnson, 220 F.Supp.3d 264, 273 (E.D.N.Y. 2016) ("Without the residual clause, Application Note 1, including robbery and other enumerated offenses as crimes of violence, can no longer be said to be interpreting or explaining the text of § 4B1.2(a)."); United States v. Soto-Rivera, 811 F.3d 53, 59-60 (1st Cir. 2016) ("There is simply no mechanism or textual hook in the Guideline that allows us to import offenses not specifically listed therein into § 4B1.2(a)'s definition of `crime of violence.' With no such path available to us, doing so would be inconsistent with the text of the Guideline.").
But I agree with Justice Ginsburg that "excising the problematic provision first and considering illustrative language second flips the normal order of operations in adjudicating vagueness challenges." Beckles, 137 S. Ct. at 897, n.* (Ginsburg, J., concurring) (citation, quotation marks, and alteration omitted). As she noted, the Supreme Court "has routinely rejected, in a variety of contexts, vagueness claims where a clarifying construction rendered an otherwise enigmatic provision clear as applied to the challenger." Id. (citing cases). See also United States v. Savage, 231 F.Supp.3d 542, 549 (C.D. Cal. 2017) ("[B]ecause Johnson left intact the Career Offender Application Notes, there is no escaping the language of the application notes or its binding application.") (citation, quotation marks, and alterations omitted); United States v. Pugh, 158 F.3d 1308, 1312 (D.C. Cir. 1998) ("where . . . we find the guideline language ambiguous, we are bound by Stinson to follow the commentary.") Further, post-Johnson and pre-Beckles, the government often conceded that the residual clause of the advisory Guidelines was void for vagueness, which is not the case here. In Soto-Rivera, for example, the First Circuit noted that "[b]ased on the government's concession that Johnson's reasoning applies just as well to the Guidelines as to the ACCA—the correctness of which we do not consider—we find that Soto-River's Career Offender status may not be predicated upon the Guidelines's residual clause," and then proceeded to consider whether the commentary was inconsistent with Section 4B1.2 once the residual clause had been stricken. 811 F.3d at 59. As noted, however, Justice Ginsburg's footnote suggests that, at least without such a concession, a holistic analysis of the Guideline and commentary is necessary, and here, that analysis shows that the career offender Guideline is not unconstitutionally vague as to Mr. Tobias.
Mr. Tobias also contends that his Section 924(c) conviction for use of a firearm during a crime of violence must be vacated. Mr. Tobias argues that Hobbs Act robbery does not categorically qualify as a crime of violence under Section 924(c)'s own "force" clause, and that Section 924(c)'s "risk of force" clause is void for vagueness under the logic applied in Johnson.
However, the Second Circuit squarely rejected this argument in United States v. Hill, 832 F.3d 135 (2d Cir. 2016).
For the reasons explained above, Mr. Tobias's Section 2255 petition (ECF No. 1) is DENIED. The Motions for Order re: Treatment (ECF Nos. 5, 6) are DENIED as moot, as the issue was already addressed in case 3:98-cr-86, ECF No. 176. The case is dismissed. The Clerk is directed to close the case.
IT IS SO ORDERED.
