United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
LYNN WINMILL U.S. DISTRICT COURT JUDGE.
Court has before it plaintiff Dade's second motion under
§ 2255. Dade received counsel and the motion is fully
briefed. For the reasons explained below, the motion is
2002, Dade was convicted by a jury of Counts One, Two, Three,
Four, and Six of the eight-count Second Superseding
Indictment. More specifically, he was convicted of making
threatening interstate communications (Count One), interstate
stalking (Count Two), interstate domestic violence on
February 18, 2001 (Count Three), use of a firearm in relation
to a violent crime (Count Four), and interstate domestic
violence on October 20, 2000 (Count Six). The Court imposed a
sentence of 336 months.
Ninth Circuit affirmed his conviction, noting the
“overwhelming” evidence of guilt, but remanded
the case for resentencing because the formerly mandatory
sentencing guidelines had been rendered advisory by U.S.
v. Booker, 543 U.S. 220 (2005). See U.S. v.
Dade, 136 Fed.Appx. 973 (9th Cir. 2005). Upon
resentencing, the Court again imposed a 336-month sentence,
finding that it was the shortest sentence that would ensure
that the victim and other women with whom Dade might become
involved would be protected. See Resentencing Transcript
(Dkt. No. 387-2) at p. 92 in U.S. v. Dade,
4:01-CR-196-BLW. Dade's appeal of his sentence was
rejected. U.S. v. Dade, 275 Fed.Appx. 600 (9th Cir.
then filed, and the Court denied, a § 2255 motion.
See Memorandum Decision (Dkt. No. 526) in U.S. v Dade,
supra. When the Supreme Court issued Johnson v.
U.S., 135 S.Ct. 2551 (2015), the Ninth Circuit
authorized Dade to file a second § 2255 motion. See
Order (Dkt. No. 544) in U.S. v. Dade, supra. It is that
motion that is now before the Court.
argues that three of his convictions - for Counts 3, 4 and 6
- must be reversed under Johnson and a follow-up
case, Sessions v. Dimaya, 138 S.Ct. 1204 (2018).
Those three Counts were based on a definition of “crime
of violence” contained in 18 U.S.C. § 16. The
Dimaya case, citing Johnson, held that
§ 16(b) was unconstitutionally vague, requiring, Dade
argues, that the conviction on those three Counts be set
aside. The three Counts at issue include two counts of
interstate domestic violence under 18 U.S.C. § 2261, and
one count of brandishing a firearm while committing one of
the interstate domestic violence crimes.
Three and Six alleged that Dade committed interstate domestic
violence, and required, as an element of each offense, that
Dade committed or attempted to commit a “crime of
violence.” See 18 U.S.C. § 2261(a)(1).
Count Four alleged that Dade brandished a firearm in relation
to a “crime of violence.” One element of that
offense was that Dade committed the crime of interstate
domestic violence as charged in Count Three. Thus, all three
Counts required the jury to find that Dade committed a
“crime of violence.”
the interstate domestic violence statute - § 2261 - did
not contain a definition for “crime of violence,
” the definition contained in 18 U.S.C. § 16
applied. The definition of “crime of violence” in
§ 16 contains two parts: Subpart (a) is known as the
force (or elements) clause and subpart (b) is known as the
residual clause. The two subparts define a crime of violence
in the disjunctive as follows:
(a) an offense that has as an element the use, attempted use,
or threatened use of physical force against the person or
property of another, or
(b) any other offense that is a felony and 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.
Dade's trial, the Court found as a matter of law that
three Idaho crimes were crimes of violence: Assault, battery,
and burglary. The Court so instructed the jury, and the jury
convicted Dade of the two counts of interstate domestic
violence (Counts Three and Six) and the count of brandishing
a firearm while committing Count Three (Count Four), although
the jury verdict form did not identify which of the three
Idaho crimes the jury relied upon to render those
that trial, the Supreme Court declared § 16(b)
unconstitutionally vague in Sessions v. Dimaya, 138
S.Ct. 1204 (2018), holding that “it requires a court to
picture the kind of conduct that the crime involves in the
‘ordinary case,' and to judge whether that
abstraction presents some
not-well-specified-yet-sufficiently-large degree of
risk.” Id. at 1216. This “produces . . .
more unpredictability and arbitrariness than the Due Process
Clause tolerates.” Id. at 1223.
striking down § 16(b), Dimaya leaves only
§ 16(a) as an operative definition of a crime of
violence. The Government concedes that, using the categorical
approach, the definition of burglary contained in the Idaho
statute does not meet the definition of crime of violence
under § 16(a). See Government Response Brief (Dkt.
No. 94) at p. 2. Dade argues that because the jury in
its verdict form did not identify which of the three Idaho
crimes it relied upon to find that a crime of violence had
been committed, it may have relied upon the crime of
burglary, and may have relied upon the definition contained
in § 16(b), rendering its verdict void. The Government
responds that the trial record shows conclusively that
Dade's convictions ...