DONALD W. MOLLOY, District Judge.
This matter comes before the Court on Defendant/Movant Wright's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. The defendant is a federal prisoner represented by Assistant Federal Defender David Ness. The United States filed its answer on August 15, 2016. Wright replied on August 29, 2016.
Wright seeks relief under Johnson v. United States, ___ U.S. ____, 135 S.Ct. 2551 (2015), which was made retroactive to final judgments by Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016). He challenges the validity of his conviction and also his designation as a career offender under the United States Sentencing Guidelines.
On March 2, 2011, Wright was indicted on one count of "unlawfully us[ing] actual and threatened force to take from the person or presence of B.B." one pound of marijuana, a violation of "18 U.S.C. §§ 1951(a) and 2" (Count 1); and one count of using and brandishing a firearm during and in relation to a crime of violence, or aiding and abetting someone else who did so, a violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2 (Count 2). Indictment (Doc. 1) at 2-3. Wright pied guilty to Count 2. Pursuant to a plea agreement,
Wright's mandatory minimum sentence was seven years. See 18 U.S.C. § 924(c)(1)(A)(ii); Plea Agreement at 2 ¶ 2. The maximum authorized sentence was life. At sentencing, Wright was designated a career offender under the Sentencing Guidelines. His total offense level was 34, and his criminal history category was VI. Ultimately, the applicable guideline range was 262 to 327 months. Wright received a downward variance and was sentenced to serve 132 months in prison, to be followed by a five-year term of supervised release. Sentencing Tr. (Doc. 45) at 49:1-7; Judgment (Doc. 40) at 2-3.
Wright did not appeal. His conviction became final on November 18, 2011. Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
In Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015) ("Johnson" or "Johnson II"), the Court considered the meaning of a provision in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The ACCA imposes a harsher sentence on a person convicted of a firearms offense if the person has three prior convictions for a violent felony or controlled substance offense. The Act defines a "violent felony" as a felony that:
18 U.S.C. § 924(e)(2)(B). Johnson discussed only the italicized clause, commonly called the "residual" clause.
The Supreme Court found the residual clause so vague that it deprived defendants of fair notice of the consequences of their decisions and so loose that it invited arbitrary enforcement. Therefore, the decision held, federal sentencing courts may no longer enhance a defendant's sentence based on a prior conviction when that conviction qualifies as a "violent felony" only under the residual clause. See Johnson, 135 U.S. at 2555-60, 2563.
Johnson did not address either subsection (i) or the first line of subsection (ii) in § 924(e)(2)(B). Those provisions remain valid.
Wright challenges his conviction not under the ACCA but under 18 U.S.C. § 924(c)(1)(A) and (iii) for using or carrying and discharging a firearm during and in relation to a "crime of violence." The definition of a "crime of violence" in § 924(c)(3) is not identical to the definition of a "violent felony" in § 924(e)(2)(B), but it is similar:
18 U.S.C. § 924(c)(3).
The Court will assume, for the sake of argument, that the residual clause in § 924(c)(3)(
For the following reasons, Wright's conviction and sentence remain valid after Johnson.
The caption of the Indictment and the text of Count 2, the § 924 count, accused Wright of "robbery affecting interstate commerce, as alleged in Count 1," citing 18 U.S.C. § 1951(a). Indictment (Doc. 1) at 1, 3. In turn, Count 1 accused Wright of "us[ing] actual or threatened force to take from the person or presence of B.B. . . . personal property . . . thereby obstructing, delaying, and otherwise affecting commerce, in violation of 18 U.S.C. §§ 1951(a) and 2." Id. at 2. In the plea agreement, Wright acknowledged that he "committed the crime of robbery affecting commerce as charged in Count I of the indictment." Plea Agreement (Doc. 20) at 3 ¶ 4; see also Offer of Proof (Doc. 22) at 2 (listing elements of Count 2); 18 U.S.C. § 1951(b)(1) (defining robbery).
The predicate crime for Wright's conviction under § 924(c), therefore, is robbery as defined by the Hobbs Act. To prevail on his § 2255 motion, Wright must show that robbery under the Hobbs Act is not a "crime of violence."
The parties agree that United States v. Mendez, 992 F.2d 1488 (9th Cir. 1993), is a relevant precedent. They disagree about what it means.
But before considering the status of conspiracy to commit a Hobbs Act robbery, the Mendez court stated that a Hobbs Act robbery is a crime of violence under§ 924(c)(3)(A). It said:
Mendez, 992 F.2d at 1491.
The parenthetical phrase describing robbery as containing an "element" of "actual or threatened force, or violence" refers to § 924(c)(3)(A)'s requirement that a crime of violence have, "as an element, the use, attempted use, or threatened use of physical force." The Mendez court's characterization of Hobbs Act robbery as a crime of violence under § 924(c)(3)(A) has been treated as binding precedent in the Ninth Circuit. See, e.g., United States v. Howard, 650 Fed. Appx. 466, 468 (9th Cir. 2016); United States v. Allen, 425 F.3d 1231, 1234 n.3 (9th Cir. 2005); United States v. Shivers, 172 F.3d 60, 1999 WL 77960 (9th Cir. Feb. 16, 1999) (unpublished mem. disp.).
It is true that Mendez announced its rule "without any analysis of the elements of robbery as defined in the Hobbs Act." United States v. Chandler, 743 F.3d 648, 658 (9th Cir. 2014), vacated, ___ U.S. ____, 135 S.Ct. 2926 (2015) (vacating and remanding in light of Johnson). The decision might be "illogical" or "questionable." Chandler, 743 F.3d at 658. But, even if it is, that does not license this Court to ignore it.
Under the Ninth Circuit's ruling in Mendez, a Hobbs Act robbery is a crime of violence under the force clause, § 924(c)(3)(A). Johnson has no bearing on § 924(c)(3)(A). If Mendez is still good law, it defeats Wright's § 2255 motion.
Wright's conviction under § 924(c) is not subject to challenge if the portion of Mendez holding a Hobbs Act robbery to be a crime of violence under § 924(c)(3)(A) remains good law. Generally, a published decision of the Ninth Circuit Court of Appeals is binding authority that "must be followed unless and until overruled by a body competent to do so." Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). Neither the Ninth Circuit nor the Supreme Court has overruled any part of Mendez.
But a published decision loses its precedential force when subsequent binding precedent has "undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); Hart, 266 F.3d at 1170; Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc), overruled in part by Gonzalez, 677 F.3d at 389 n.4). In that case, district courts are instead required to "consider themselves bound by the intervening higher authority and reject the prior opinion . . . as having been effectively overruled." Gonzalez, 677 F.3d at 389 n.4.
Therefore, the question is whether Mendez is "clearly irreconcilable" with any of the more recent decisions on categorical and modified categorical analysis that Wright invokes: Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016); Descamps v. United States, ___ U.S. ___, 133 S.Ct. 2276 (2013); Johnson v. United States, 559 U.S. 133 (2010) ("Johnson I"); Leocal v. Ashcroft, 543 U.S. 1 (2003); and the various circuit decisions applying these cases. See generally Mot. § 2255 at 11-19.
Mendez was decided many years before the Supreme Court clarified, in Descamps and again in Mathis, that "the first task for a sentencing court faced with an alternatively phrased statute is . . . to determine whether its listed items are elements or means." Mathis, 136 S. Ct. at 2256. The distinction between elements and means is important because it indicates whether a particular statute indivisibly defines one indivisible crime, merely allowing for different ways of proving its elements, or, instead, whether a statute is divided into multiple crimes, each with its own discrete set of elements. Whether a statute defines one crime with various means of committing it or two or more distinct crimes with different sets of elements matters because every means of committing a particular crime must qualify as a "crime of violence" if any means of committing it is to be one. See Mathis, 136 S. Ct. at 2248-49, 2256; Almanza-Arenas v. Lynch, 815 F.3d 469, 476-79 (9th Cir. 2015) (en banc); Ramirez v. Lynch, 810 F.3d 1127, 1134-38 (9th Cir. 2016). When a statute is divisible, therefore, not every conviction incurred under the statute must have the use or attempted or threatened use of physical force as an element.
As related to the Hobbs Act, for instance, if the Act is indivisible, every instance of violating the Act must involve force, and plainly that is not the case. See, e.g., 18 U.S.C. § 1951(b)(2) (defining extortion under color of official right, that is, inducing a victim to part with property by wrongfully threatening to use an office to the victim's detriment). But if the Hobbs Act is divisible—say, into robbery or extortion—then a Hobbs Act robbery might be a "crime of violence" while a Hobbs Act extortion is not.
Mendez contains some language suggesting the Hobbs Act is indivisible. The court says the Act "defines a crime using several permutations, any one of which constitutes the same offense." Mendez, 992 F.2d at 1490 (emphasis added). Taken literally, this statement would seem to mean that § 1951(a) is indivisible, at least as to some of the terms used in the subsection.
But the reasoning of the opinion suggests this statement should not be taken literally:
Id. In other words, although it did not use the same terms as Descamps and Mathis, Mendez clearly considered whether § 1951(a) defined multiple crimes— robbery, extortion, conspiracy to commit robbery, etc.—or whether it defined one crime—viz., interference with commerce by wrongful use of force or threats.
Further, Mendez concluded that the Hobbs Act defines more than one crime. The court stated that, "where a defendant has been convicted under a statute describing crimes [plural] of both violence and non-violence, we need only find that the charged crime for which the defendant was convicted constitutes a `crime of violence' to conclude categorically that the charged offense may serve as a predicate for a § 924(c) violation." Mendez, 992 F.2d at 1491. The court went on to discuss only robbery, not extortion, and it considered robbery and conspiracy to rob separately. Since the court did not consider extortion at all, it necessarily (albeit implicitly) concluded it did not matter whether extortion was a crime of violence or not. Therefore, Mendez tacitly held that § 1951 (a) of the Hobbs Act is divisible and that robbery and extortion and conspiracy to commit robbery are separate crimes. See Mendez, 992 F.2d at 1490-91 (discussing United States v. Potter, 895 F.2d 1231 (9th Cir. 1990) (construing Cal. Penal Code § 261(a)(2)), and United States v. Selfa, 918 F.2d 749 (9th Cir. 1990) (construing first and second paragraphs of 18 U.S.C. § 2113(a)); see also Callanan v. United States, 364 U.S. 587, 595-97 (1961) (holding that Hobbs Act conspiracy is separate crime from substantive offenses but declining to consider whether the "repetitive" nature of "some of the substantive sections" indicates they are "variants in phrasing of the same delict").
If Mendez had reasoned or assumed that some robberies under the Hobbs Act may be violent and others non-violent, it would indeed be irreconcilable with Mathis and Descamps. But it is only necessary to translate Mendez's terms into the contemporary parlance and read the opinion as holding, in part, that 18 U.S.C. § 1951 (a) is divisible. Mathis and Descamps do not "undercut the theory or reasoning underlying [Mendez] in such a way that the cases are clearly irreconcilable." Gonzalez, 677 F.3d at 389 n.4.
Johnson I holds that a crime cannot be characterized as a "crime of violence" unless its elements require proof the defendant used "violent force—that is, force capable of causing physical pain or injury to another person." Johnson I, 559 U.S. at 140 (emphasis in original). A crime that may be proved by showing only a de minimis use of force, or use of "force" in the common-law sense that includes even an offensive touching, will not suffice. Id. at 139.
It is possible that a federal court will one day sustain a conviction for robbery under the Hobbs Act where a defendant takes a collection pouch from the hands of a pizza delivery driver by simply running past the driver and grabbing it out of his hands. In that case, de minimis physical force or mere "offensive touching" would appear to suffice to demonstrate a use of "force" within the definition of robbery in § 1951 (b)(1). If and when that happens, Mendez might no longer be reconcilable with Johnson I. See Howard, 650 Fed. Appx. at 468 n.1 (citing United States v. Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014), and reserving the issue).
But, so far as Wright can show, that day has not arrived. He cites cases sustaining convictions for extortion under the Hobbs Act based on a use of minimal physical force or offensive contact, see Mot. § 2255 at 16, but no comparable case sustaining a conviction for Hobbs Act robbery. He also cites cases from other jurisdictions construing language identical or very similar to the language of the Hobbs Act and finding their terms met by minimal force or contact.
Concededly, the language of the Hobbs Act provides some support for Wright's position. Mendez quotes 18 U.S.C. § 1951(b)(1) right up to the point where the language begins to raise questions about whether true physical force is really required. See Mendez, 992 F.2d at 1490 (cutting off definition of robbery after "by means of actual or threatened force, or violence," and omitting "or fear of injury, immediate or future"). The Hobbs Act does not explain whether the words "injury" and "fear" in the definition of robbery are limited to physical injury or fear of it or, like the words "injury" and "fear" in the definition of extortion, it may include threats of other kinds of harm. See also infra n.6.
As the United States points out, the traditional concept of robbery is closely related to physical violence. Black's Law Dictionary "defines `physical force' as `[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim." Resp. to § 2255 Mot. (Doc. 49) at 9 (quoting Johnson I, 559 U.S. at 139 (emphasis added) (quoting Black's Law Dict. 717 (9th ed. 2009)). But the Hobbs Act's definition of robbery does not follow the traditional concept or even the contemporary generic definition of robbery, i.e., "aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person." United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006),
Under the Hobbs Act, danger to the person is not an element of robbery. Even immediacy is not an element. "Robbery" reaches the act of taking property by threatening future injury to the property of an absent family member. See 18 U.S.C. § 1951(b)(1). Traditionally, that degree of attenuation is characteristic of extortion, not robbery. See, e.g., 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(a) intro., at 172-73 (2d ed. 2003); § 20.3(d), at 186-87; 20.4(a)(4) & n.16 at 200-03; § 20.4(b), at 203-04 & n.31.1 (2d ed. 2003 & Supp. 2016-2017) (citing Becerril-Lopez, 541 F.3d at 891).
Nonetheless, despite the overlap between the Hobbs Act's definitions of traditionally violent robbery and traditionally non-violent or less-violent extortion, every court of appeals that has considered the issue after Johnson I has held that a Hobbs Act robbery necessarily requires proof of the use or attempted or threatened use of physical force against the person or property of another within the meaning of § 924(c)(1)(A). See, e.g., United States v. Gooch, 850 F.3d 285, 290-92 (6th Cir.), cert. denied, No. 16-9008 (U.S. June 5, 2017); United States v. Anglin, 846 F.3d 954, 964-65 (7th Cir.), pet. for cert. filed, No. 16-9411 (U.S. May 31, 2017); In re St. Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); United States v. Hill, 832 F.3d 135, 138-39 (2d Cir. 2016).
In view of these numerous opinions, whatever the language of the Hobbs Act may ultimately be held to mean, it is not possible to say that Johnson I is "clearly irreconcilable" with the Mendez court's holding that Hobbs Act robbery has, as an element, the use or attempted or threatened use of physical force against the person or property of another.
Finally, Wright argues that the Hobbs Act fails to meet the mens rea requirement of Leocal v. Ashcroft, 543 U.S. 1 (2003). Analogizing bank robbery under 18 U.S.C. § 2113 to the Hobbs Act, see United States v. Holloway, 309 F.3d 649, 651-52 (9th Cir. 2002), he also argues that intimidation would suffice to meet the elements of robbery and that intimidation requires only that the victim experience it, not that the defendant intend to cause it. See Mot. § 2255 at 17-19.
On these points, the Court disagrees. Intimidation facilitates a taking when it is perceived as a threat to use physical force. Wright is correct that a victim's perception of a threat does not always mean the defendant made a threat. But the Hobbs Act requires proof that a defendant obtain property "by robbery or extortion." 18 U.S.C. § 1951(a) (emphasis added). The statute requires proof, in other words, of goal-driven behavior by the defendant, be it a deployment of force or violence or intimidating threat, for the purpose of compelling or inducing someone to give up property. Such conduct falls within the highest form of intent required by Leocal: the use (or attempted or threatened use) of violence or unlawful threats as a means to an end. See Leocal, 543 U.S. at 9. Leocal is easily reconciled with Mendez.
As explained, the question is whether Mendez is "clearly irreconcilable" with subsequent Supreme Court decisions. The answer to that question is at least "not clearly enough." Its manner of analysis may have been incomplete or even incorrect, but it is not so clearly incomplete or incorrect that this Court is bound to overlook it. Therefore, the Court must follow it.
Because Mendez holds that a Hobbs Act robbery is a crime of violence under § 924(c)(3)(A), and because Johnson could only be pertinent to § 924(c)(3)(B), Johnson does not support relief for Wright. As to Wright's challenge to his conviction under § 924(c), his § 2255 motion must be denied.
Johnson also does not confer an entitlement to relief against a career offender designation under the advisory sentencing guidelines. In Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886 (2017), the Supreme Court held that the advisory guidelines are not subject to due process challenges on grounds of vagueness. Id. at 890. Wright's challenge to his sentence must also be denied.
A certificate of appealability is not warranted. Even if Mendez is no longer good law, that fact would not help Wright to show that he was deprived of a constitutional right. See 28 U.S.C. § 2253(c)(2). And even if § 924(c)(3)(B) is unconstitutional in light of Johnson, Johnson has no bearing on § 924(c)(3)(A) or Mendez. Further, after Beckles, no reasonable jurist could find support for a due process challenge to a sentence imposed under the advisory guidelines.
Accordingly, IT IS HEREBY ORDERED:
1. Wright's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 (Doc. 47) is DENIED;
2. A certificate of appealability is DENIED. The clerk shall immediately process the appeal if Wright files a Notice of Appeal.
3. The clerk shall ensure that all pending motions in this case and in CV 16-85-M-DWM are terminated and shall close the civil file by entering judgment in favor of the United States and against Wright.
As explained below, Mendez has been treated and should be read as reasoning that the Hobbs Act is divisible (whether that conclusion is right or wrong).
Further, all violations of the Hobbs Act carry the same maximum penalty. See Mathis, 136 S. Ct. at 2256 ("If statutory alternatives carry different punishments, then under Apprendi they must be elements."). While not decisive, provision for one penalty range tends to show the Hobbs Act creates one crime: interference with commerce by threats or violence. But see Callanan, 364 U.S. at 595-97.
The cited decisions also observe that Congress' decision to define robbery and extortion separately in § 1951 (b)(1) and (b)(2) means, or at least suggests, the statute is divisible. But § 1951(b)(3) defines "commerce." "Commerce" is neither an element nor a crime. The element that "commerce" speaks to is "obstructs, delays, or affects commerce," 18 U.S.C. § 1951(a), which must be proved in every Hobbs Act case. Subsection (b)(3), therefore, is not consistent with the suggestion that (b)(l) and (b)(2) must be mutually exclusive. And, most fundamentally, § 1951(a) contains the language of prohibition ("Whoever . . . shall be fined . . . or imprisoned"), the terms encapsulating the prohibited conduct, and the jurisdictional element. Subsection (b) merely defines "terms" used in subsection (a).
