MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S § 2255 MOTION

ECF No. 46

LAWRENCE J. O'NEILL, Chief District Judge.

I. INTRODUCTION

Before the Court is Petitioner Brian Goodman's ("Petitioner") motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, filed on June 24, 2016. ECF No. 46. On October 11, 2016, the Government filed its opposition. ECF No. 52. Petitioner filed a reply on October 21, 2016. ECF No. 53. Having considered the parties' briefing and the record in this case, the Court DENIES Petitioner's motion under § 2255.

II. BACKGROUND

On April 16, 2013, Petitioner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), pursuant to an agreement under Federal Rule of Criminal Procedure 11(c)(1)(B), as charged in Count 1 of a single-count Indictment. ECF No. 29. At sentencing, Petitioner was found to qualify for a sentencing enhancement under section 2K2.1(a)(2) of the United States Sentencing Guidelines ("USSG" or "Guidelines") based on two prior felony convictions: Battery Against a Police Officer, in violation of section 243(c) of the California Penal Code ("CPC"), which was deemed a "crime of violence," for which he served a two-year term of imprisonment; and Transportation of a Controlled Substance For Sale, a controlled substance offense, for which he served a one-year term of imprisonment. ECF No. 37 (Presentence Report ("PSR")) ¶¶ 23, 36, 39. With the enhancement, Petitioner's base offense level was set at 24. Id. Two additional levels were added under § 2K2.1(b)(4) because the weapon involved was stolen. Id. ¶ 2. Three points were subtracted for acceptance of responsibility. Id. ¶ 27-28. Therefore, Petitioner's total offense level was determined to be 23 with a criminal history category of IV, bringing the applicable Guidelines range to 70 to 87 months. Id. at 29. On July 8, 2013, Petitioner was sentenced to 70 months in prison. ECF Nos. 39 & 40.

Petitioner did not appeal his conviction or sentence. This is his first motion under 28 U.S.C. § 2255. ECF No. 46 at 8.1

III. LEGAL FRAMEWORK

A. 28 U.S.C. § 2255

Section 2255 provides four grounds upon which a sentencing court may grant relief to a petitioning in-custody defendant:

28 U.S.C. § 2255(a). Generally, only a narrow range of claims fall within the scope of § 2255. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). The alleged error of law must be "a fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).

B. Johnson II and Welch

Pursuant to the Armed Career Criminal Act ("ACCA"), a defendant must be sentenced to a mandatory minimum of 15 years to life in custody if he has three prior convictions for "a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" as any crime punishable by imprisonment for a term exceeding one year that:

18 U.S.C. § 924(e)(2)(B) (emphasis added). Courts generally refer to the first clause, § 924(e)(2)(B)(i), as the "elements clause"; the first part of the disjunctive statement in (ii) as the "enumerated offenses clause"; and its second part (starting with "or otherwise") as the "residual clause." Johnson v. United States, 135 S.Ct. 2551, 2556-57, 2563 (2015) ("Johnson II"); United States v. Lee, 821 F.3d 1124, 1126 (9th Cir. 2016).

In Johnson II, the Supreme Court held that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process," on the basis that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." 135 S. Ct. at 2557, 2563. "Two features of the residual clause conspire to make it unconstitutionally vague." Id. at 2557. First, "the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime" by "t[ying] the judicial assessment of risk to a judicially imagined `ordinary case' of a crime, not to real-world facts or statutory elements." Id. Second, "[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. at 2558.

In Welch v. United States, the Supreme Court held that its decision in Johnson II announced a new substantive rule that applies retroactively to cases on collateral review. 136 S.Ct. 1257, 1268 (2016). "By striking down the residual clause for vagueness, [Johnson II] changed the substantive reach of the Armed Career Criminal Act, altering the `range of conduct or the class of persons that the [Act] punishes." Id. at 1265 (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). As a result, defendants sentenced pursuant to the ACCA residual clause can collaterally attack their sentences as unconstitutional under § 2255. See, e.g., United States v. Heflin, 195 F.Supp.3d 1134 (E.D. Cal. 2016).

IV. DISCUSSION

Although Petitioner was sentenced under the Guidelines rather than the ACCA, the Guidelines' definition of "crime of violence" includes an identical residual clause to the one held to be unconstitutionally vague in Johnson. USSG § 4B1.2(a)2 ("the term `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]"). Petitioner challenges his sentence on the basis that the Guidelines calculation underlying his sentence incorporated the same definition of a "crime of violence" that the Supreme Court determined was unconstitutionally vague in the context of the ACCA in Johnson II. ECF No. 46 at 8. Without the applicable sentencing enhancement under § 2K2.1(a)(4), Petitioner's base offense level would have been set at 20 pursuant to USSG § 2K2.1(a)(4), bringing his total offense level down to 19. See USSG § 2K2.1(a)(4) (setting the base offense level at 20 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). The corresponding Guidelines range for that offense level with a criminal history category of VI is 46 to 57 months. Id.; see also USSG, Chap. 5, Part A.

The Government concedes that the residual clause of § 4B1.2(a)(2) is unconstitutionally vague after Johnson II.3 ECF No. 52 at 20. However, the Government argues that Petitioner is not entitled to relief under 28 U.S.C. § 2255 for four reasons. First, it argues Petitioner should be denied relief because he waived the right to attack his sentence collaterally in his plea agreement. Id. at 13-15. Second, it argues Petitioner procedurally defaulted his § 2255 claim because he did not raise the argument that the residual clause of § 4B1.2(a) was unconstitutionally vague on direct appeal. Id. at 16-19. Third, it argues Johnson does not apply retroactively to challenges under the Sentencing Guidelines. Id. at 20-26. Fourth, it argues Petitioner's conviction for Battery Against a Peace Officer, in violation of CPC § 243(c)(2) is still a crime of violence under the elements clause of § 4B1.2(a)(2) and therefore the sentencing enhancement still applies. Id. at 26-27. Because the issue of whether CPC § 243(c) is a crime of violence under the elements clause is dispositive in this case, the Court will address it first.

The Ninth Circuit decided this very issue in United States v. Colon-Arreola, 753 F.3d 841 (9th Cir. 2014), holding that CPC § 243(c)(2) is categorically a crime of violence under the sentencing provision in USSG § 2L1.2(b)(1)(A)(ii), whose definition of "crime of violence" includes an elements clause that is identical to the one in § 4B1.2(a)(2).4 In reaching this determination, the Ninth Circuit applied the framework from Taylor v. United States, 495 U.S. 575 (1990), and looked "`not to the facts underlying the prior conviction [],' but `only to the fact of conviction and the statutory definition of the prior offense.'" 753 F.3d at 843 (quoting Taylor,495 U.S. at 600, 602)). The sentencing enhancement would only apply "if `the full range of conduct covered by [CPC § 243(c)(2)] falls within the meaning of [the elements clause of the `crime of violence' definition]." Id. (citing United States v. Castillo-Marin, 684 F.3d 914, 919 (9th Cir. 2012). A CPC § 243(c)(2) conviction requires proof of the following elements:

Id. (citing CPC §§ 242, 243(c)(1)-(2)); see also Judicial Council of California Criminal Jury Instruction ("CALCRIM") 945 (same). When the battery is "committed against a peace officer engaged in the performance of his or her duties," the statute provides for a term of imprisonment for 16 months, or two or three years. CPC § 243(c)(2). While acknowledging its previous holding that misdemeanor battery under CPC § 242 is "not a categorical crime of violence because the statute does not require the use of violent force," the Colon-Arreola panel distinguished CPC § 243(c)(2) from misdemeanor battery because CPC § 243(c)(2) "requires proof of an element that § 242 does not, namely, that `an injury is inflicted on a [peace officer] victim.'" 753 F.3d at 844 (citing Ortega-Mendez v. Gonzales, 450 F.3d at 1016) and CPC § 243(c)(3)." Because CPC § 243(f)(5) defines "injury" as "any physical injury which requires professional medical treatment," the Colon-Arreola panel observed that "a person cannot be convicted under § 243(c)(2) unless he willfully and unlawfully applies force sufficient to not just inflict a physical injury on the victim, but to inflict a physical injury severe enough that it requires professional medical treatment." Id. at 844-845; see also CALCRIM 945 (to prove that a defendant is guilty of CPC § 243(c)(2), the state must prove that the peace officer "suffered injury as a result of the touching").5 Therefore, the panel held that CPC § 243(c)(2) "fits squarely within the term [crime of violence] by requiring the deliberate use of force that injures another." Id. at 845 (quoting United States v. Laurico-Yeno, 590 F.3d 818, 820-22 (9th Cir. 2010)).

Colon-Arreola is directly on point here and mandates the finding that Petitioner's CPC § 243(c)(2) conviction is a crime of violence within the meaning of §4B1.2(a) and that his § 2K2.1(a)(4) sentencing enhancement was therefore properly imposed. See Hart v. Massanari, 266 F.3d 1155, 1175 (9th Cir. 2001) ("A district court bound by circuit authority...has no choice but to follow it."). The holding in Colon-Arreola, which only addressed whether CPC § 243(c)(2) falls within the elements clause, is unaffected by Johnson II, which only applies to the residual clause. See Johnson II, 135 S. Ct. at 2563 ("Today's decision does not call into question ... the remainder of the Act's definition of a violent felony."); see also United States v. Bailey, CR 06-00777 YGR, CR 07-00779 YGR, 2016 WL 6514167, at *4-5 (N.D. Cal. Oct. 17, 2016) (under Colon-Arreola, finding that "a conviction under Section 243(c) remains a crime of violence after [Johnson II]."). Petitioner's argument to the contrary is unavailing. Petitioner correctly notes that in order for an offense to be a crime of violence under the elements clause, a state statue must require proof of both violent force and intentional conduct, and that the Supreme Court has held that the phrase "physical force" means "violent force—that is, force capable of causing physical pain or injury to another person." ECF No. 46 at 14 (citing United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) and Johnson v. United States, 559 U.S. 113, 140 (2010)). Petitioner then argues that the injury requirement in CPC § 243(c)(2) is discrete from what the elements clause requires for a state statute to qualify as a crime of violence. See ECF No. 46 at 16; ECF No. 53 at 34-35. However, to sustain a CPC § 243(c)(2) conviction, the state must prove that the defendant's actions resulted in a peace officer sustaining "a physical injury severe enough that it requires professional medical treatment." See CPC §§ 243(c)(2), (f)(5). As observed by the Colon-Arreola panel, the injury requirement in CPC § 243(c)(2) therefore makes the statute a categorical match with the elements clause— to inflict a "physical injury severe enough that it requires professional medical treatment" necessarily implicates the application of "violent force—that is, force capable of causing physical pain or injury to another person." See 753 F.3d at 844-45.6

The injury requirement is also what distinguishes this case from Ortega-Mendez, which Petitioner urges the Court to follow. See ECF No. 46 at 15. In Ortega-Mendez, the Ninth Circuit held that simple battery, CPC § 242, which penalizes "any willful and unlawful use of force or violence upon the person of another," is not categorically a "crime of violence" within the meaning of an identically-worded elements clause in the crime of violence definition found at 18 U.S.C. § 16(a). 450 F.3d at 1020. Key to the Ortega-Mendez panel's reasoning was its observation that California courts have interpreted the phrase "force or violence" as "requiring neither a force capable of hurting or causing injury nor violence in the usual sense of the term." Id. at 1016-18. State and federal courts interpreting the statute have found that CPC § 242's force requirement is satisfied by mere harmful or offensive touching. See id. (citing People v. Page, 123 Cal.App.4th 1466, 1473 n.1 (2004) ("even though the statutory definition of battery requires `force or violence' ... this has the special legal meaning of harmful or offensive touching); People v. Colantuono, 7 Cal.4th 206, 2014 n.4 (1994) ("It has long been established, both in tort and criminal law, that the least touching may constitute battery."); Singh v. Ashcroft, 486 F.3d 1228, 1232 (9th Cir. 2004) (holding that conduct involving mere offensive touching does not rise to the level of "crime of violence")). CPC § 243(c)(2)'s injury requirement, which is an additional and separate element from the simple battery element at issue in Ortega-Mendez, cannot be satisfied by a mere offensive touching.7 See Colon-Arreola, 753 F.3d at 845. Therefore, the Court finds that Ortega-Mendez does not apply in this case.

Petitioner additionally cites to United States v. Moreno-Tobar, 452 Fed Appx. 763, 764-65 (9th Cir. 2011), an unpublished memorandum disposition, which relied upon the reasoning and holding of Ortega-Mendez to find that CPC § 243(d), Battery with Serious Bodily Injury, likewise does not "have as an element the use, attempted use, or threatened use of physical force against the person of another." ECF No. 46 at 15. The Moreno-Tobar panel noted that "[a] non-violent but unlawful touching could result in a serious bodily injury under any number of possible factual scenarios." 452 Fed Appx. at 765 n.3. However, from this Court's perspective, the Moreno-Tobar panel's reasoning falls short of the Supreme Court's requirement that there be a "realistic probability, not a theoretical possibility" that a CPC § 243(d) conviction could be sustained without demonstrating the use, attempted use, or threatened use of physical force against the person of another. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193 (2007). The Court further notes that the holding in Moreno-Tobar conflicts with the findings reached by other federal courts on this issue. See Takapu v. Holder, 356 Fed. Appx. 17, 18 (9th Cir. Nov. 13, 2009) (unpublished) ("There is nothing `negligent or merely accidental' about a § 243(d) offense; it requires the willful use of physical force that causes serious injury..."); United States v. Moss, CR 13-211 YGR, 2016 WL 6514170, at *5 (N.D. Cal. Oct. 11, 2016) ("Here, Moss has not pointed to any binding authority showing that non-violent touching may result in serious bodily injury. Rather, he has offered only unrealistic, hypothetical scenarios in which an individual could cause substantial bodily injury to another through touching that does not involve violent force. As such, the court finds aggravated battery [under CPC § 243(d)] is still a crime of violence after [Johnson II]."). Accordingly, the Court declines to follow Moreno-Tobar.

Based on the foregoing, the Court finds that pursuant to binding Ninth Circuit authority, CPC § 243(c)(2) is still a crime of violence under the elements clause of § 4B1.2. Colon-Arreola, 753 F.3d at 844-45.8 Thus, because the Court has determined that Petitioner's § 2K2.1 sentencing enhancement was not imposed in violation of the Constitution, the Court DENIES his § 2255 motion.

V. CERTIFICATE OF APPEALABILITY

An appeal may not be taken from the denial of a § 2255 motion unless a certificate of appealability is issued. 28 U.S.C. § 2253(c)(1). "A certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." Id. § 2253(c)(2). To obtain a certificate of appealability, Petitioner "must demonstrate that the issues are debatable among jurists of reason; that a court could resolve the issues in a different manner; or that the questions are adequate to deserve encouragement to proceed further." Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (internal quotation marks and citations omitted). The Court is also mindful of the "relatively low" threshold for granting a certificate of appealability. Jennings v. Woodford, 290 F.3d 1006, 1010 (9th Cir. 2002)

Although the Court denies Petitioner's § 2255 motion on the merits, the Court concludes that reasonable jurists could find the Court's assessment of Petitioner's claims debatable and that the questions presented are adequate to proceed. Accordingly, the Court GRANTS Petitioner a certificate of appealability.

CONCLUSION AND ORDERS

Accordingly, IT IS HEREBY ORDERED that Petitioner Brian Goodman's Motion to Vacate, Set Aside, or Correct Sentence pursuant to § 2255 (ECF No. 46) is DENIED. However, the Court GRANTS to Petitioner a certificate of appealability for this motion.

IT IS SO ORDERED.