ORDER GRANTING MOTION TO VACATE SENTENCE

(ECF NOS. 66, 67, 75, 77)

ANDREW P. GORDON, District Judge.

Defendant William Ebron pleaded guilty to use of a firearm during a "crime of violence" under 18 U.S.C.§ 924(c). Ebron now moves to vacate his conviction and sentence. He relies on Johnson v. United States, in which the Supreme Court struck down part of a crime-of-violence sentence enhancement in a statute similar to § 924(c). Ebron contends that Johnson's holding applies to the portion of § 924(c) that he was convicted under and means that he did not commit a crime of violence for purposes of this statute.

The government counters first by arguing that Ebron is precluded from challenging his sentence because he waived this right in his plea agreement. But when Ebron signed that deal, Johnson did not exist and there was no question that § 924(c) applied to him. And the Ninth Circuit has been clear that defendants cannot be held responsible for failing to make constitutional challenges that did not exist when they were sentenced; nor can we allow an unconstitutional sentence like this to remain. The government's waiver argument thus fails.

On the merits, I find that Johnson renders Ebron's § 924(c) conviction infirm. A crime can qualify as a § 924(c) crime of violence in only two ways: (1) it necessarily involved an attempted, threatened, or actual use of force against another (the force clause), or (2) it otherwise poses a serious risk of danger to others (the residual clause). The residual clause is unconstitutional under Johnson and recent Ninth Circuit precedent, so the government can no longer rely on it. And the force clause is out because the predicate crime that was used to qualify as Ebron's crime of violence here—conspiracy to commit federal robbery—can be committed without using, threatening, or attempting to use physical force (after all, to conspire one need only enter an agreement). Because Ebron's predicate crime is not a match for either of § 924(c) crimeof-violence provisions, he no longer qualifies for this conviction. I thus grant his motion and vacate his sentence.1

Background

Ebron pleaded guilty to one count of using a firearm during a crime of violence under 18 U.S.C. § 924(c).2 He was sentenced to 84 months' imprisonment.3 Ebron admitted in his plea that he committed a crime of violence for purposes of § 924(c) by conspiring to commit robbery under the Hobbs Act ("Hobbs Act conspiracy").4

The government raises two arguments against Ebron's motion to vacate: (1) that he should be barred from challenging his sentence in the first place because he entered into a plea agreement and did not raise this challenge sooner, and (2) that his admission to a Hobbs Act conspiracy still qualifies as a crime of violence under § 924(c).

Discussion

A. Ebron did not waive his right to raise a new constitutional argument that was not previously available to him.

The government first argues that Ebron waived his right to challenge his sentence by both signing a plea agreement and waiting so long to bring his challenge. As to his plea agreement, the Ninth Circuit has explained that a plea waiver cannot be enforced when a defendant challenges his sentence based on a now-unconstitutional statute.5 And at the time Ebron was sentenced, his conviction qualified as a crime of violence under § 924(c). It was not until the Supreme Court handed down Johnson that a constitutional challenge was available to him. The government's plea waiver argument is thus meritless.

The government also argues that Ebron is procedurally barred from challenging his sentence under 28 U.S.C. § 2255. But § 2255(f)(3) allows Ebron to challenge his sentence within one year from "the date on which the right [he] assert[s] was initially recognized by the Supreme Court." Ebron moved for relief within a year after Johnson. And as I explain below, I find that the Supreme Court's constitutional ruling in Johnson applies to § 924(c). Ebron is therefore asserting a right that was recognized by the Supreme Court, making his motion timely. Indeed, courts have generally taken this approach to challenges under Johnson.6 Ebron is thus not precluded from challenging his sentencing enhancement because he entered into a plea agreement and did not otherwise bring this challenge earlier.

B. Hobbs Act conspiracy does not qualify as a crime of violence under § 924(c).

Title 18 U.S.C. § 924(c) criminalizes using or carrying a firearm in relation to a "crime of violence" and imposes mandatory, consecutive minimum sentences. An offense may qualify as a crime of violence under either of two clauses. Section 924(c)(3)(A), the statute's "force clause," covers a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Section 924(c)(3)(B), the "residual clause," encompasses any felony "that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."

The government relies on the residual clause to oppose Ebron's motion. It contends that Johnson does not render § 924(c)'s residual clause unconstitutional, and that Ebron's commission of Hobbs Act conspiracy qualifies under the still-intact clause. In the past, courts often relied on the residual clause because there is more leeway in the standard: a predicate crime merely needs to involve a "substantial risk" of "physical force" being used against someone, and it qualifies. But this clause's nebulous nature raises serious due process concerns because it is difficult to discern when a predicate crime will qualify.

The Supreme Court addressed this very problem in Johnson. The Court considered whether the residual clause of the Armed Career Criminal Act ("ACCA"), passed constitutional muster. The ACCA's residual clause encompasses predicate crimes that "present[] a serious potential risk of physical injury to another," which is similar to §924(c)'s version, which covers crimes that "involve[] a substantial risk that physical force against the person . . . of another may be used . . . ." In Johnson, the Court concluded that "the [ACCA's] residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates," and held it void for vagueness.7

Despite that the two clauses are similar, the government contends that Johnson was a oneoff case that should be confined to the ACCA. And several courts outside of the Ninth Circuit agree.8 These courts reason that the ACCA's residual clause was unconstitutionally broad and vague, at least in part, for reasons that don't track § 924(c)'s version. For one, § 924(c)'s residual clause is much narrower: it requires physical force to be used against a victim while the ACCA's clause extended to any crime that happened to cause a physical injury, whether or not physical force was used. For another, § 924(c)'s clause is limited to crimes that are inherently dangerous when they are committed, while the ACCA's clause extended to crimes that merely created a risk of danger in the future. Finally, the ACCA's clause sowed additional confusion because it covered any dangerous crimes that related to four distinct enumerated offenses; § 924(c) covers only a single dangerous crime, uses of physical force. So there are sensible reasons to distinguish Johnson.

But I must follow the Ninth Circuit's guidance, and there the government's argument fails. In Dimaya v. Lynch, the Ninth Circuit roundly rejected reading Johnson as confined to the ACCA, instead applying Johnson to invalidate the INA's residual clause.9 Save an additional comma, the INA's residual clause is indistinguishable from § 924(c)'s clause.10 The Ninth Circuit has thus already addressed the argument whether a narrower residual clause like § 924(c)'s is invalidated under Johnson. And the answer, at least in this circuit, is that Johnson applies.

The Dimaya panel acknowledged that the ACCA's residual clause is worded a bit differently than the INA's.11 But it reasoned that these were distinctions without a difference. The panel explained that, in striking down the ACCA's clause, the Supreme Court in Johnson was chiefly concerned with two problems: (1) that a crime qualified for the enhancement based on "a judicially imagined `ordinary case' of a crime, not to real-world facts or statutory elements," and (2) that the "ACCA's residual clause left uncertainty about how much risk it takes for a crime to qualify as a violent felony."12 The panel concluded that these two problems "appl[y] with equal force to the similar statutory language and identical mode of analysis used to define a crime of violence for purposes of the INA."13

Dimaya's analysis of the INA applies with equal force to § 924(c)'s identically-worded residual clause, and the government offers no reason to think otherwise.14 The Ninth Circuit signaled which factors in Johnson matter when determining whether a residual clause is unconstitutional, and those factors are equally relevant to § 924(c)'s clause. Whether a crime qualifies is tied to a "judicially imagined ordinary case," not "real-world facts." And determining how much risk it takes to qualify under § 924(c)'s vague "physical force" standard creates uncertainty to say the least. Following Dimaya's lead, § 924(c)'s "similar statutory language and identical mode of analysis used to define a crime of violence" mean that Johnson applies and that § 924(c)'s residual clause is constitutionally infirm.

With the residual clause out of commission, and given that the government does not argue that Ebron's commission of Hobbs Act conspiracy could qualify under another part of § 924(c) untouched by Johnson,15 Ebron's conviction and sentence under this statute are infirm. I grant his motion and vacate his sentence. Because Ebron was convicted only of this now-vacated § 924(c) charge, he appears eligible for immediate release.

Conclusion

IT IS THEREFORE ORDERED that the defendant's motions under 28 U.S.C. § 2255 (ECF Nos. 66, 67) are GRANTED.

IT IS FURTHER ORDERED that the parties' motions for leave to file supplemental authority (ECF Nos. 75, 77) are GRANTED.

IT IS FURTHER ORDERED that within seven days of entry of this order, the United States shall submit a brief showing cause why Ebron should not be immediately released. If the government requests further incarceration, Ebron may file a response within seven days of the government's brief. If no cause is shown to delay release or to hold a hearing, the court will order Ebron's release without further notice.