United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
Lynn Winmill Chief Judge
the Court is Petitioner's Motion to Vacate, Set Aside, or
Correct Sentence Under 28 U.S.C. § 2255 (Dkt. 1), the
Government's Motion to Stay (Dkt. 3), and the
Government's Motion to Dismiss (Dkt. 5). Having fully
reviewed the record, the Court finds that the facts and legal
arguments are adequately presented in the briefs and record.
Accordingly, in the interest of avoiding further delay, and
because the Court conclusively finds that the decisional
process would not be significantly aided by oral argument,
the motions shall be decided on the record before this Court
without oral argument. For the reasons explained below, the
Court will deny the motion to stay and will grant the
government's motion to dismiss the petition.
August 23, 2013, Defendant Andrew Tony Blackeagle pleaded
guilty to assault with a dangerous weapon. The United States
Probation Office prepared a Presentence Investigation Report
(PSR), which calculated Blackeagle's Total Offense Level
as 21. The Total Offense Level would have been 18 but for a
three-level enhancement applied under § 4B1.1(a) of the
United States Sentencing Guidelines, based on the PSR's
conclusion that Blackeagle was a “career
offender.” See PSR, Cr. Dkt. 26, ¶ 22. To
qualify as a career offender, a defendant must have committed
at last two prior drug crimes or “crimes of
violence.” See U.S.S.G. §
4B1.1(a). Here, the PSR concluded that Blackeagle
had committed two prior crimes of violence: (1) assault with
a deadly weapon; and (2) attempted strangulation.
PSR, Cr. Dkt. 26, ¶ 22.
“crime of violence” is defined in Guidelines
§ 4B1.2 as follows:
(a) The term “crime of violence” means any
offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that -
(1) has as an element the use, attempted use, or
threatened use of physical force against the person of
(2) is burglary of a dwelling, arson, or extortion, involves
the use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
U.S.S.G. § 4B1.2(a) (emphasis added).
emphasized language - contained in both subsections (a)(1)
and (a)(2) - is key to this petition. The emphasized language
in subsection (a)(1) has come to be known as the
“force” clause, or the “elements”
clause. The Supreme Court has clarified that the force
mentioned in this section must be “violent force - that
is, force capable of causing physical pain or injury to
another person.” See Johnson v. United States,
559 U.S. 133, 140 (2010). Subsection (a)(2) identifies
enumerated offenses-burglary of a dwelling, arson, extortion,
and offenses involving the use of explosives-and then
contains an “otherwise involves” clause
(emphasized above). The “otherwise involves”
clause is more commonly referred to as the “residual
clause.” See Chambers v. United States, 555
U.S. 122, 124 (2009).
case, Blackeagle did not object to the PSR's conclusion
that he was a career offender, nor did he ask the Court to
make any specific findings regarding the underlying
conclusion that his prior two convictions qualified as
“crimes of violence.” In other words, he did not
ask the Court to clarify whether his prior convictions
qualified as crimes of violence under any particular clause
of Guidelines §4B1.2(a).
November 5, 2013 sentencing hearing, the Court adopted the
PSR's findings and sentencing calculations, thus
concluding that Blackeagle was a career offender under §
4B1.1(a) based on his two prior convictions for “crimes
of violence.” See Presentence Investigation
Report, Cr. Dkt. 26, ¶ 22; Statement of
Reasons, Cr. Dkt. 31, ¶ 1.A. The Court also adopted
the advisory Guidelines range set forth in the PSR, which was
77 to 96 months' imprisonment, corresponding to a Total
Offense Level of 21 and a Criminal History Category of VI.
See Statement of Reasons, Cr. Dkt. 31, ¶ III.
Court imposed a below-guidelines sentence of 67 months'
imprisonment, to be followed by three years of supervised
release. See Jdgmt., Cr. Dkt. 32. The Court
explained that it “reduced the term of imprisonment by
ten months [from 77 months to 67 months] to credit the
defendant time in custody that most likely would not be
credited to him by the Bureau of Prisons.”
Statement of Reasons, Cr. Dkt. 31, ¶ V.D.
20, 2016, Blackeagle filed the pending § 2255 motion
seeking to vacate his sentence in light of United States
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2241 (2015). As explained further
below, Blackeagle says that under Johnson, he should
not have received the three-level career-offender enhancement
because one of his prior convictions - attempted
strangulation - does not qualify as a “crime of
violence” in light of Johnson. Thus, according
to Blackeagle, his advisory Guidelines range should have been
57 to 71 months of imprisonment (rather than 77 to 96
months), corresponding to a Total Offense Level of 18.
Johnson, the Supreme Court addressed a challenge to
the residual clause of the Armed Career Criminal Act (ACCA),
18 U.S.C. § 924(e), which provides that a defendant with
three prior “violent felony” convictions faces a
fifteen-year mandatory-minimum sentence if convicted of
violating 18 U.S.C. § 922(g). 18 U.S.C. § 924(e).
The ACCA residual clause definition of “violent felony,
” which encompasses any crime that “involves
conduct that presents a serious potential risk of physical
injury to another, ” is identical to the residual
clause of the Guidelines' definition “crime of
violence.” The Johnson Court held that the
residual clause is so vague that it “both denies fair
notice to defendants and invites arbitrary enforcement by
judges.” 135 S.Ct. at 2557. Accordingly,
Johnson held that an increase to a defendant's
sentence under the clause “denies due process of
law.” In Welch v. United States, 136 S.Ct.
1257, 1268 (2016), the Supreme Court held that
Johnson is retroactive as applied to the ACCA.
However, neither the Supreme Court nor the Ninth Circuit has
addressed whether Johnson is retroactive as to the
identical language in the Sentencing Guidelines.
prisoner in custody under sentence of a federal court, making
a collateral attack against the validity of his or her
conviction or sentence, must do so by way of a motion to
vacate, set aside or correct the sentence pursuant to 28
U.S.C. § 2255 in the court that imposed the sentence.
Tripati v. Henman, 843 F.2d 1160, 1162 (9th Cir.
1988). Section 2255 was intended to alleviate the burden of
habeas corpus petitions filed by federal prisoners in the
district of confinement by providing an equally broad remedy
in the more convenient jurisdiction of the sentencing court.
United States v. Addonizio, 442 U.S. 178, 185
(1979). Under 28 U.S.C. § 2255, a federal sentencing
court may grant relief if it concludes that a prisoner in
custody was sentenced in violation of the Constitution or
laws of the United States.
ultimate argument has two parts: First, he says that the
residual clause in the Career Offender Guidelines - which is
identically worded to the residual clause in the ACCA at
issue in Johnson - is unconstitutionally vague.
Second, he says his prior conviction for attempted
strangulation cannot qualify as a crime of violence without
relying on the Guidelines' residual clause. Blackeagle
thus concludes that his sentence is illegal and that he
should be re-sentenced without the career-offender finding in
Court is not persuaded. Even assuming Blackeagle is correct
on his first argument - that the residual clause in the
Guidelines is unconstitutional - Blackeagle's second
argument lacks merit because his prior conviction for
attempted strangulation qualifies as a crime of violence
under the “force” clause of Guidelines §
4B1.1(a). As ...