Buck v. United States

          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 See United States v. Buck, 133 F.3d 929 (9th Cir. 1997) (unpublished).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 ...