RICARDO S. MARTINEZ, Chief District Judge.
Before the Court is Petitioner's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence. Dkt. # 1. Petitioner Jadedon Parker challenges the 38-month sentence imposed on him by this Court after he pleaded guilty to two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Petitioner timely brought this motion, and now challenges his sentence on the basis that the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ____, 135 S.Ct. 2551 (2015), applies retroactively to his case and requires that the Court resentence him under a different Guideline range calculation. After full consideration of the record, and for the reasons set forth below, the Court GRANTS Mr. Parker's § 2255 motion.
On July 16, 2014, Mr. Parker was charged by Indictment with two counts of being a Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1).
The Presentence Report ("PSR") calculated the base offense level as 22 on the basis that the offense involved a "semiautomatic firearm that is capable of accepting a large capacity magazine" and that Mr. Parker's prior Washington state conviction for drive-by shooting qualified as a "crime of violence." Id., Dkt. #22 at ¶ 10.; see U.S.S.G. § 2K2.1(a)(1). The PSR also applied a two-level enhancement under § 2K2.1(b)(1)(B) because Mr. Parker possessed three firearms. Id. at ¶ 10. The PSR also allowed that Mr. Parker was entitled to a three-level adjustment for acceptance of responsibility, yielding a total offense level of 21. Id. at ¶ ¶ 19-21. This offense level, combined with criminal history category III, placed Mr. Parker in an advisory Guideline range of 46 to 57 months' imprisonment. Id. at ¶ 67.
The Government agreed that the PSR reflected the corrected sentencing range. Id., Dkt. #25 at 4. However, the Government recommended a downward variance from the Guidelines, and a sentence of 41 months based in part on the fact that Mr. Parker's longest previous period of incarceration was 20 months. Id., Dkts. #24 at 6 and #25 at 4. Defense counsel agreed with the offense level and sentence range calculations set forth in the PSR. Case No. CR14-211RSM, Dkt. #24 at 10. However, defense counsel requested a prison term of no more than 22 months, citing to Mr. Parker's horrific childhood, his cognitive deficits, and his mental health issues. Id. at 11.
On January 15, 2015, this Court departed downward from the Guideline range and sentenced Mr. Parker to 38 months in prison. Id., Dkts. #26 and #27. The Court also imposed three years of supervised release. Id. There was no appeal.
On April 7, 2016, based on the U.S. Supreme Court decisions in Johnson, supra, and Welch v. United States, ___ U.S., ____, 136 S.Ct. 1257 (2016), Mr. Parker filed the instant motion. He argues that without the "crime of violence" enhancement, his post-plea base offense level would be 20. Dkt. #1 (citing § 2K2.1(a)(4)(B)). Thus, according to Mr. Parker, applying the remaining adjustments, his adjusted base offense level would be 19, resulting in an advisory Guideline range of 37 to 46 months, and a 38-month Guideline sentence no longer accounts for the § 3553(a) factors relied upon this Court to vary downwards from the low end of the erroneous Guideline range by 8 months. Dkt. #1.
A motion under 28 U.S.C. § 2255 permits a federal prisoner, in custody, to collaterally challenge his sentence on the grounds that it was imposed in violation of the Constitution or laws of the United States, or that the Court lacked jurisdiction to impose the sentence or that the sentence exceeded the maximum authorized by law. A petitioner seeking relief under § 2255 must file his motion with the one-year statute of limitations set forth in § 2255(f). That section provides that a motion is timely if it is filed within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." § 2255(f)(3).
As noted above, Petitioner's motion to vacate follows the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, supra. In Johnson, the Supreme Court ruled on a section of the Armed Career Criminal Act ("ACCA") known as the "residual clause," which provided a definition of "violent felony." Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces a mandatory minimum sentence of 15 years if he has three prior convictions for "violent felonies." 18 U.S.C. § 924(e)(1). The ACCA residual clause provided that a violent felony was one that "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). In Johnson, the Supreme Court held that this clause was "unconstitutionally vague." 135 S.Ct. 2557. In doing so, the Court necessarily found the clause "vague in all its applications," id. at 2561, and concluded that "[i]ncreasing a defendant's sentence under the clause denies due process of law." Id. at 2557. Subsequently, in Welch v. United States, the Court held that Johnson applies retroactively to defendants whose sentences were enhanced under the ACCA's residual clause. 136 S.Ct. 1257, 1265 (2016).
In the instant matter, Petitioner was not sentenced as a career offender under the ACCA. Rather, he was sentenced under the United States Sentencing Guidelines ("USSG" or "Guidelines"). The Guidelines also include in its definition of "crime of violence" a sentence identical to the ACCA residual clause. See USSG § 4B1.2(a)(2) (providing that a "crime of violence means any offense . . . [that] otherwise involves conduct that presents a serious potential risk of physical injury to another"); see also United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013) (holding that the Ninth Circuit makes "no distinction between the terms `violent felony' [as defined in the ACCA] and `crime of violence' [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clause[s]"). Thus, Petitioner now moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that it was unconstitutional under Johnson and Welch, and that his sentence is no longer appropriate. In response, the Government argues that Petitioner's claim is procedurally barred, and that Johnson's holding does not retroactively apply to Guidelines sentences. Dkt. #4.
The Government first argues that Johnson does not retroactively apply to cases such as the instant one, where the sentence was imposed under the Guidelines. Dkt. #4 at 5-12. To date, several Judges in this District have rejected that argument. See, e.g., Gibson v. United States, Case No. C15-5737BHS, Gilbert v. United States, C16-0534JCC, Pressley v. United States, Case No. C16-510RSL. However, several Circuit Courts have also considered the Government's argument and have held that extending Johnson to sentences under the Guidelines would amount to a new rule that has not been made retroactive to cases on collateral review by the United States Supreme Court, thereby recognizing that applying Johnson in the Guidelines context amounts to a new procedural rule within the meaning of Teague v. Lane, 489 U.S. 288 (1989), not a substantive rule. See Donnell v. United States, ___ F.3d ____, 2016 WL 3383831, *2-*3 (8th Cir. June 20, 2016); In re Arnick, ___ F.3d ____, 2016 WL 3383487 (5th Cir. June 17, 2016); In re Griffin, ___ F.3d ____, 2016 WL 3002293, at *5 (11th Cir. May 25, 2016). A review of the large number of Johnson/Guidelines orders being issued around the country reveals that District Courts are struggling with how to proceed with cases under these circumstances. For the reasons discussed below, the Undersigned now falls in line with the other Judges of this Court.
In Welch, the Supreme Court assumed without deciding that the "normal framework" established by Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L. Ed. 2d 334 (1989), applies in a federal collateral challenge to a federal conviction. Welch, 136 S. Ct. at 1264. Generally under Teague, "`new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.'" Id. (quoting Teague, 489 U.S. at 310). There are two exceptions to the Teague retroactivity bar. First "`new substantive rules generally apply retroactively.'" Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L. Ed. 2d 442 (2004)) (brackets omitted). Second, "new watershed rules of criminal procedure, which are procedural rules implicating the fundamental fairness and accuracy of the criminal proceeding, will also have retroactive effect." Id. (internal quotation marks omitted). As a result, the Court held that Johnson applies retroactively to defendants whose sentences were enhanced under the ACCA's residual clause. 136 S.Ct. 1257, 1265 (2016).
Welch confirmed that Johnson announced a new rule, and that the new rule was substantive because it "`alter[ed] the range of conduct or the class of persons that the law punishes.'" 136 S. Ct. at 1264-65 (quoting Schriro, 542 U.S. at 353). In a recent opinion, the Supreme Court noted that under Teague, "[s]ubstantive rules . . . set forth categorical constitutional guarantees that place certain criminal laws and punishments altogether beyond the States' power to impose." Montgomery v. Louisiana, 136 S.Ct. 718, 729, 193 L. Ed. 2d 599 (2016). In contrast, procedural rules "`are designed to enhance the accuracy of a conviction or sentence by regulating the manner of determining the defendant's culpability.'" Id. at 730 (quoting Schriro, 542 U.S. at 353) (emphasis in original). Montgomery further recognized that some rules have both procedural and substantive effects. Id. at 734-35 (citing and quoting Mackey v. United States, 401 U.S. 667, 692 n.7, 91 S.Ct. 1160, 28 L. Ed. 2d 404 (1971) ("Some rules may have both procedural and substantive ramifications")). As Montgomery explained, some substantive rules have a "procedural component[,]" or a procedural requirement, but that does not "transform substantive rules into procedural ones." Id.
The Government argues that while Johnson's rule is substantive in the context of the ACCA, it is procedural and not substantive when considered in the context of the Guidelines, because:
Dkt. #4 at 7.
Some courts have agreed with the Government's position. See, e.g., Richardson v. United States, 623 F. App'x 841, 842 (8th Cir. 2015); Frazier v. United States, No. 1:09-CR-188-CLC-SKL-1, 2016 U.S. Dist. LEXIS 29272, 2016 WL 885082, at *6 (E.D. Tenn. Mar. 8, 2016), appeal filed, No. 16-5299 (6th Cir. Mar. 15, 2016); United States v. Stork, No. 3:10-CR-132, 2015 U.S. Dist. LEXIS 162777, 2015 WL 8056023, at *5 (N.D. Ind. Dec. 4, 2015), appeal filed, No. 15-3785 (7th Cir. Dec. 15, 2015); United States v. Willoughby, 144 F.Supp.3d 935, 2015 WL 7306338, at *6-7 (N.D. Ohio 2015), appeal filed, No. 16-3080 (6th Cir. Jan. 28, 2016). Other courts, including this one, have reached the opposite conclusion. See, e.g., Gibson, Gilbert and Pressley, supra; United States v. McGary, 2016 U.S. Dist. LEXIS 102002, *14 (N.D. Cal. Aug. 3, 2016); United States v. Dean, 2016 U.S. Dist. LEXIS 33094, 2016 WL 1060229, *13 (D. Or.); United States v. Jordan, 2016 U.S. Dist. LEXIS 96099 (E.D. Wash. July 22, 2016).
Still other courts have taken a different approach. For example, in United States v. Ramirez, No. 10-10008-WGY, 2016 U.S. Dist. LEXIS 68022, 2016 WL 3014646 (D. Mass. May 24, 2016), the District Court examined "the new rule" at issue in order to determine whether Johnson could be applied retroactively to a Guidelines case. The Government had argued that to grant collateral relief, the court would have to announce or apply two new rules: that the residual clause in the Guidelines is unconstitutionally vague and that due process vagueness challenges apply to the Guidelines. Id. The defendant had taken a "categorical" approach, arguing that the new rule in Johnson is the only rule the court would have to apply to invalidate the Guidelines' residual clause as unconstitutionally vague. Ramirez, 2016 U.S. Dist. LEXIS 68022, 2016 WL 3014646, at *5. The Ramirez court rejected the government's "two rule" argument as a "procedural quagmire[.]" Id. But, it also did not adopt the defendant's proposal of "categorically applying the Johnson rule to the Guidelines" because, in the court's view, a "more involved" analysis was required to support the retroactivity of the Guidelines's residual clause vagueness rule. Id. (noting that the analysis was "not a perfunctory application of Johnson"). The court concluded that the new rule was not the rule announced in Johnson, but was instead the application of Johnson to the Guidelines' residual clause. Id. at *6.
In that context, the Ramirez court went on to discuss the retroactive application of the new rule on collateral review. Because the rule was not Johnson itself but "rather Johnson as applied to the Guidelines's" residual clause, the court rejected the position that Welch resolved the issue. Id. at *7. However, the court rejected the Government's position that the "rule" at issue was procedural. Ramirez, 2016 U.S. Dist. LEXIS 68022, 2016 WL 3014646, at *7-10. The court noted the fundamental role of the Guidelines in sentencing, that they provide the basis for a defendant's sentencing range, and that, while advisory, they restrict a judge's discretion to a certain degree. Id. at *3 n.8 and *7.
Next, the court explained that even before considering the statutory factors under § 3553(a) and other variations, a career offender designation creates an indelible imprint through which the sentencing proceeds. Id. at *7 (explaining that "[b]efore embarking on the `advisory' component of sentencing under the Guidelines. . . . the judge already views the defendant through career offender-tinted glasses with a baseline sentencing range multitudes higher than otherwise") (internal quotation marks omitted). The court further stated that "empirical data" shows that even after a deviation from the suggested Guidelines range, the "differential between the sentences with and the sentences without the career-offender designation persists, as a result of the Guidelines' continuing gravitational pull resulting from procedural hurdles that make the imposition of a non-Guidelines sentence less likely." Id. (citations, internal quotation marks, and brackets omitted). The Ramirez court then concluded that "in practice, the upper limit of a Guidelines range acts as a ceiling for the vast majority of sentences imposed by federal district court judges, making a career-offender designation the equivalent of an increase in a statutory maximum." Id. at *8 (emphasis added). Finally, the court offered this response to other district courts reaching the opposite conclusion on the retroactivity issue:
Id. at *9 n.23 (citation, internal quotation marks, and brackets omitted).
Based on that reasoning, the court concluded that:
Id. at *9 (citation and internal quotation marks omitted).
In a March 2016 opinion, the District of Oregon also rejected the Government's position, concluding that Johnson is a new, substantive rule, the Teague bar does not apply, and thus, Johnson applies retroactively on collateral review. United States v. Dean, 2016 U.S. Dist. LEXIS 33094, 2016 WL 1060229, at *16 (D. Or. Mar. 15, 2016). That court, like the Ramirez court, noted the prominent role the Guidelines have in sentencing. Id. at *12 (citing and quoting Peugh v. United States, 133 S.Ct. 2072, 2084 (2013) ("the Guidelines remain `the lodestone of sentencing")). Similar to the Ramirez court, the Oregon District Court rejected the idea that Johnson did not change the conduct subject to punishment. Id. at *16. The court explained that under Johnson, the defendant's prior state court conviction no longer constituted a "crime of violence" for purposes of the Guidelines' residual clause. Id. "Johnson substantively changes the conduct by which federal courts may enhance the sentence of a defendant under the Guidelines." Id. Thus, in contrast to a "procedural" rule under Teague, "Johnson does not `regulate only the manner of determining the defendant's culpability' like a procedural rule would." Id. (quoting Schriro, 542 U.S. at 353).
In Dean, relying on Reina-Rodriguez v. United States, 655 F.3d 1182 (9th Cir. 2011), the Oregon District Court ultimately concluded that Ninth Circuit precedent mandated adoption of a categorical approach to the issue. Dean, 2016 U.S. Dist. LEXIS 33094, 2016 WL 1060229, at *16. In Reina-Rodriguez, the defendant was convicted of illegal reentry after deportation. Id. at 1185. Although the base offense level for his crime was eight, the district court applied a sixteen-level enhancement because the defendant had previously been convicted of seconddegree felony burglary in Utah which the district court concluded was a "crime of violence" under the Guidelines. The defendant directly appealed, arguing that his Utah burglary conviction did not qualify as a burglary of a dwelling under the Guidelines. The Ninth Circuit rejected that argument and affirmed the district court. Id. (citing United States v. Reina-Rodriguez, 468 F.3d 1147 (9th Cir. 2006)).
The next year, the Ninth Circuit issued an en banc decision in an ACCA case which overruled several of its previous cases, including Reina-Rodriguez, to the extent those cases relied on an erroneous methodology to determine whether a "dwelling" meets the Guidelines' definition of "dwelling." United States v. Grisel, 488 F.3d 844, 851 n.5 (9th Cir. 2007) (en banc). After Grisel, the defendant in Reina-Rodriguez filed a § 2255 motion, arguing that Grisel should be applied retroactively to invalidate his sentence enhancement given that Grisel specifically overruled the previous direct appeal panel opinion affirming his conviction. Reina-Rodriguez, 655 F.3d at 1187. Despite the fact that Grisel was an ACCA-enhancement case and the defendant's enhancement was under the Guidelines, the Ninth Circuit concluded that Grisel announced a substantive rule, not a procedural one, and that Teague did not bar its retroactive application in the defendant's § 2255 collateral Guidelines challenge. Id. at 1188-90. Thus, the District of Oregon rejected the argument that the retroactive nature of Johnson's new rule changes when it is applied to a Guidelines sentence. Id.
Finally, this Court continues to reach the same conclusion. In Pressley, supra, this Court rejected the Government's argument that a new constitutional rule can be substantive in one context and procedural in another, finding that such a position runs against controlling precedent. Pressley Cae No. C16-510RSL, Dkt. #18 at 4 (W.D. Wash. Aug. 11, 2016). The Court noted that it "declines to adopt this reasoning as it creates a distinction where the Ninth Circuit found none." Id. This Court also rejected the Government's argument that in recognizing a vagueness challenge to the Sentencing Guidelines, the Court necessarily creates a new rule allowing the Guidelines to be challenged as unconstitutionally vague. Id. at 5. The Court explained:
Id.
For the reasons discussed by all of these courts, this Court is not persuaded by the arguments made by the Government in this case. The Government concedes that the Guidelines' Career Offender residual clause is unconstitutionally vague. Dkt. #4 at 5. Welch holds that Johnson announced a new substantive rule, and Reina-Rodriguez provides strong support for concluding that the rule is to be treated as substantive regardless of the context.
The Government also argues that Petitioner's motion is procedurally barred because he did not file a direct appeal of his sentence. Dkt. #4 at 12-15. The Court disagrees. A petitioner may overcome procedural default by showing "cause," meaning that the petitioner's default was excusable, and "actual prejudice," meaning that petitioner suffered harm from the action forming the basis of the claim. See, e.g., Bousley v. United States, 523 U.S. 614 (1998). Petitioner demonstrates both in this case.
A petitioner can demonstrate cause is by showing that the claim being raised is "so novel that its legal basis [was] not reasonably available to counsel" at the time of sentencing or direct appeal. Reed v. Ross, 468 U.S. 1, 16 (1984). For the reasons advanced by Petitioner, the Court agrees that his Johnson claim was not previously reasonably available to him. See Dkt. #6 at 10-12. Likewise, the Court agrees that Petitioner has demonstrated prejudice, see dkt. #6 at 13-14, and the Government does not actually address prejudice in its response. Accordingly, Petitioner is entitled to relief.
Finally, the Government argues that if the Court agrees that Johnson does not apply retroactively, then Petitioner's motion is untimely because the one-year statute of limitations ran before he brought his petition. This argument is now moot, as the Court has determined that Johnson does apply retroactively in this case.
As discussed above, this Court has concluded that Johnson is a new, substantive rule, the Teague bar does not apply, and Johnson applies retroactively. The Government does not dispute the merits of Petitioner's claim that his 38-month Guideline sentence no longer accounts for the § 3553(a) factors relied upon this Court to vary downwards from the low end of the range. See Dkt. #4 at 4 ("The government agrees the court relied on the Sentencing Guideline's residual clause to find Parker's Drive-by Shooting conviction was a crime of violence, so the merits question turns on a single issue: does Johnson apply retroactively to a defendant challenging a court's advisory Guidelines calculation in a §2255 motion?"). The Court answered that question in the affirmative. Accordingly, the Court finds that Petitioner's sentence was imposed in violation of the Constitution and he is entitled to habeas relief under § 2255.
Having considered Petitioner's motion, Respondent's answer thereto, and the remainder of the record, the Court hereby finds and ORDERS:
