United States District Court, D. Arizona
REPORT AND RECOMMENDATION
BRIDGET S. BADE, UNITED STATES MAGISTRATE JUDGE
Movant/Defendant
Tony Buck (“Defendant”), has filed an Amended
Motion to Vacate, Set Aside, or Correct Sentence by a person
in Federal Custody pursuant to 28 U.S.C. § 2255 (the
“amended motion”) and a supporting memorandum.
(Doc. 3.)[1]Respondent/Plaintiff, the United States of
America (“the government”), has filed a response
asserting that the amended motion should be denied. (Doc.
13.) Defendant has filed a reply in support of his amended
motion. (Doc. 14.) For the reasons set forth below the Court
recommends that the amended motion be denied.
I.
Factual and Procedural Background
A.
Charges, Trial, and Sentencing
On
November 7, 1995, an indictment was returned against
Defendant, in the District of Arizona, charging him with the
following offenses: (1) three counts of use of a firearm
during and in relation to a crime of violence, in violation
of 18 U.S.C. § 924(c)(1) and (2) (Counts Two, Four, and
Six); (2) two counts of assault with intent to steal property
of the United States, in violation of 18 U.S.C. §
2114(a) (Counts One and Five); and (3) one count of attempted
murder of a postal employee in violation of 18 U.S.C. §
1114 (Count Three). (CR Doc. 2.) On July 25, 1996, a jury
found Defendant guilty of all counts. (CR Doc. 158.) The
Court sentenced Defendant to 210 months' imprisonment on
Counts One, Three, and Five to be served concurrently, five
years' imprisonment on Count Two, to run consecutively to
the sentences on Counts One, Three, and Five, and twenty
years' imprisonment on Counts Four and Six, to run
concurrently to each other but consecutively to all other
counts. (CR 191.) Defendant's convictions were affirmed
on direct appeal, but Defendant did not raise on appeal the
issue now presented in the amended motion. See United
States v. Buck, 133 F.3d 929 (9th Cir. 1997)
(unpublished).
B.
The Amended § 2255 Motion
On June
22, 2016, Defendant filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.)
On July 11, 2016, Defendant filed the pending amended motion
in which he asserts that his convictions under §
924(c)(1) in Counts Two and Six are invalid because the two
underlying offenses of armed postal robbery, in violation of
18 U.S.C. § 2114(a), are not crimes of violence under
§ 924(c)(3). (Doc. 3.) Defendant seeks relief under
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551 (2015) (Johnson II). (Doc. 3.) On the
government's motion, the Court stayed this proceeding
pending the Supreme Court's decision on review of
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015),
cert granted, ___ U.S. ___, 137 S.Ct. 31 (2016).
(Doc. 10.) After the Supreme Court issued its decision in
Sessions v. Dimaya, ___ U.S. ___, 138 S.Ct. 1204
(2018), the Court lifted the stay. (Doc. 12.) Therefore, the
Court considers Defendant's amended motion.
II.
Defendant's Claims
Defendant
argues that the Court should vacate his convictions under
§ 924(c) for use of a firearm “during and in
relation to a crime of violence” because: (1) the
“residual clause” of § 924(c)(3)(B) is
unconstitutional under Johnson II and, therefore,
his armed postal robbery convictions under § 2114(a) may
no longer be considered “crimes of violence”
under that clause; and (2) a conviction under § 2114(a)
does not qualify as a “crime of violence” under
the “elements” clause of § 924(c)(3)(A).
(Doc. 3 at 3-4.) Thus, Defendant argues that his convictions
for armed postal robbery under § 2114(a) were not
“crimes of violence” that triggered the
application of § 924(c), which imposes a mandatory
consecutive term of imprisonment for using or carrying a
firearm “during and in relation to any crime of
violence.” 18 U.S.C. § 924(c)(1)(A).
Section
924(c)(3) defines a “crime of violence” as an
offense that is a felony and “(A) has as an element the
use, attempted use, or threatened use of physical force
against the person or property of another, ” (the
“elements” or “force” clause) or
“(B) 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 “residual” clause). See Id. at
§ 924(c)(3)(A) and (B); see also United States v.
Watson, 881 F.3d 782, 784 (9th Cir. 2018) (describing
Sections A and B as the “elements” and
“residual” clauses).
A.
“Crime of Violence” under the Residual
Clause
The
Supreme Court has recently considered the constitutionality
of statutes that contain language similar to the residual
clause in § 924(c)(3)(B). In Johnson II, the
Supreme Court considered a vagueness challenge to the
residual clause of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e). 135 S.Ct.
2551. Under the ACCA, a defendant convicted of violating
§ 922(g) is subject to more severe punishment if that
defendant has three prior “violent felony”
convictions. The definition of “violent felony”
in the ACCA's residual clause includes any crime that
“involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. §
924(e)(2)(B). The Court held that the residual clause in the
ACCA was unconstitutionally vague because it “denie[d]
fair notice to defendants and invite[d] arbitrary enforcement
by judges.” Johnson II, 135 S.Ct. at 2557.
Accordingly, the Court held that increasing a defendant's
sentence under the ACCA's residual clause violated the
Due Process Clause. Id. at 2563. The Court clarified
that its decision did not “call into question the
application of the Act to the four enumerated offenses, or
the remainder of the Act's definition of a violent
felony.” Id.
Following
Johnson II, in Sessions, the Supreme Court
considered whether the “residual” clause in an
immigration statute, 18 U.S.C. § 16(b), which includes
language similar to the residual clause of §
924(e)(2)(B)(ii), is unconstitutionally vague. 138 S.Ct. 1204
(2018). Section 16(b) defines “crime of violence”
using language that is nearly identical to the ACCA's
residual clause.[2] The Court held that the definition of
“crime of violence” in § 16(b)'s
“residual” clause is unconstitutionally vague for
the same reasons that it found the definition of a
“crime of violence” in the ACCA's residual
clause unconstitutionally vague in Johnson II.
Dimaya, 138 S.Ct. at 1216. The Court explained that
§ 16(b) is invalid because it “produces, just as
ACCA's residual clause did, more unpredictability and
arbitrariness than the Due Process Clause tolerates.”
Id. at 1216. (internal quotation marks omitted).
In the
amended motion, Defendant argues that the Court should vacate
his convictions under § 924(c) because the residual
clause of § 924(c)(3)(B) is unconstitutional under
Johnson II and, therefore, armed postal robbery
cannot be considered a predicate “crime of
violence” under that clause. (Doc. 3 at 3.) The
government apparently concedes this argument by stating that
the Supreme Court “following the reasoning of
Johnson [II] has now ruled that the residual clause
contained in 18 U.S.C. § 16(b) and therefore [§]
924(c)(1)(B), which contains the identical language is
unconstitutionally vague.” (Doc. 13 at 5 (citing
Dimaya, 138 S.Ct at 1223).) Therefore, the Court
need not resolve this issue and assumes that armed postal
robbery under § 2114(a) is no longer a predicate
“crime of violence” under the residual clause of
§ 924(c)(3)(B). Instead, the Court considers whether the
predicate offense of armed postal robbery under 18 U.S.C.
§ 2114(a) is a crime of violence under the elements
clause of § 924(c)(3)(A). (See Doc. 13 at
5-13.) If so, then Defendant's convictions under §
924(c) remain valid and he is not entitled to § 2255
relief.
B.
“Crime of Violence” under the Elements
Clause
Section
924(c)(1)(A) provides for increased penalties for a person
“who, during and in relation to any crime of violence .
. . uses or carries a firearm, or who, in furtherance of any
such crime, possesses a firearm.” 18 U.S.C. §
924(c)(1)(A). As defined in the elements clause of §
924(c)(3), a “crime of violence” is an offense
that is a felony and that “has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another.” 18 U.S.C. §
924(c)(3)(A). To qualify as a crime of violence under this
clause, the element of “physical force” must
involve “violent physical force-‘that is, force
capable of causing physical pain ...