
    UNITED STATES of America, Plaintiff, v. Adam Michael TOMISSER, Defendant.
    CASE No. 2:11-CR-2115-EFS-2
    United States District Court, E.D. Washington.
    Signed 07/12/2016
    
      Thomas J. Hanlon, U.S. Attorney’s Office, Yakima, WA, for Plaintiff.
   EDWARD F. SHEA, Senior United States District Judge

Before the Court is Defendant Adam Michael Tomisser’s Motion to Vacate Sen-tenee and for Immediate Resentencing, pursuant to 28 U.S.C. § 2255. ECF No. 73. On July 6, 2016, the Court held a hearing on this matter. Ms. Alison Guernsey appeared on behalf of Mr. Tomisser, who was not present for the hearing. ECF No. 80. Mr. Thomas Hanlon appeared on behalf of the United States Attorney’s Office (USAO). Id. The Court grants Defendant’s motion for the reasons articulated at the hearing and the reasons set forth below.

I. FACTUAL BACKGROUND

On November 8, 2011, the grand jury returned an indictment against Defendant charging him with one count of Unlawful Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1). ECF No. 1. The statutory maximum penalty of the crime was a 10 year term of incarceration. 18 U.S.C. § 924(a)(2); ECF No. 3; & ECF No. 64 ¶ 1. After discovery, pretrial motions, and evidentiary hearings, Defendant and the USAO entered into a plea agreement. ECF No. 64. Pursuant to the agreement, Defendant agreed to plead guilty to the charge and the United States agreed to not file any additional charges. Id. ¶¶ 1 & 7. The Defendant also specifically waived his right to appeal his sentence, so long as it did not exceed 78 months, and his right to collaterally attack his sentence, pursuant to 28 U.S.C. § 2255, except one based on ineffective assistance of counsel. ECF No. 64 at 8. Furthermore, both parties agreed to recommend a sentence of 78 months incarceration. Id. at 6.

On April 13, 2012, the Court accepted Defendant’s guilty plea but reserved accepting the parties’ plea agreement until the sentencing hearing so a Presentencing Investigation Report (PSIR) could be completed by the U.S. Probation Office (USPO). ECF Nos. 50-52.

On July 11, 2012, the Court held a sentencing hearing in this matter. ECF No. 65. Accepting the PSIR, the Court determined that Defendant’s Total Offense Level was 19 and that his Criminal History Category was VI. ECF Nos. 59 at 44 & 67 at 1. This resulted in a advisory sentencing guideline range of 63-78 months. The Court accepted the parties’ joint recommendation and imposed a sentence of 78 months imprisonment, three years supervised release, a $100 special penalty assessment, and no fine. ECF Nos. 66-67.

On June 1, 2016, Defendant filed the instant motion seeking resentencing in this matter. ECF No. 73. Defendant argues that he is currently serving an illegal sentence in light of Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which held that residual clause of the Armed Career Criminal Act (ACCA) was unconstitutional, and Welch v. United States, — U.S. -, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), which held that the Supreme Court’s ruling in Johnson was retroactively applicable on collateral review.

II. ANALYSIS

Defendant believes he is serving an illegal and unconstitutional sentence. ECF No. 73. He has filed this motion, pursuant to 28 U.S.C. § 2255 and is asking the Court for resentencing. Id.

a. 28 U.S.C. § 2255
The statute provides:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). This statutory right, however, is subject to a one-year statute of limitations, which

shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Defendant’s motion was filed well after one-year since the imposition of judgment. Defendant asserts, however, that his motion is timely because he is asserting a right that was newly recognized by the Supreme Court in Johnson and made retroactively applicable on collateral review. ECF No. 73. If the Supreme Court’s decision in Johnson recognized a new right, and if that right is retroactively applicable to the sentencing guidelines on collateral review, then Defendant has met the statute of limitations and his motion is timely.

b. ACCA, Johnson v. U.S., and Welch v. U.S.

Congress has made it unlawful for certain individuals to possess firearms, including a felon. Typically, a defendant found guilty of being a felon in possession of a firearm cannot be sentenced to more than ten years imprisonment. 18 U.S.C. § 924(a). An individual found guilty of certain firearm-related charges can be found to be an Armed Career Criminal thereby increasing his potential prison term to a minimum of 15 years imprisonment and a maximum of life imprisonment under ACCA. ACCA applies if the firearm violator has three or more earlier convictions for a “serious drug offense” or a “violent felony.” Id. ACCA defines a “violent felony” as “any crime 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 another;”
2) “is burglary, arson, or extortion, [or] involves use of explosives;” or
3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.”

18 U.S.C. § 924(e)(2)(B). This third category of “violent felony” is now known as ACCA’s residual clause.

In 2015 the Supreme Court decided Johnson v. United States:

holding] that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process. Our contrary holdings in James and Sykes are overruled. Today’s decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent felony.

135 S.Ct. 2551, 2563 (2015). The Supreme Court found the residual clause unconstitutional because it “denies fair notice to defendants” and “due process of law.” Id. at 2557.

Foreseeably, the holding in Johnson resulted in disagreement among the circuit courts as to whether Johnson applied retroactively to cases on collateral review. In response, the Supreme Court in Welch, held “that Johnson is retroactive in cases on collateral review.” 136 S.Ct. at 1268.

c. Applicability of Johnson and Welch to the United States Sentencing Commission Guidelines (U.S.S.G.)

Defendant Tomisser, however, was not found to be an armed career criminal. Instead, he was subjected to an enhanced advisory sentencing guideline range. Specifically, because he had a prior conviction for a “crime of violence,” his Base Offense Level was increased to 20 from 14, pursuant to U.S.S.G. § 2K2.1. ECF No. 59 at 7 ¶ 35. After adjustments, Defendant had a Total Offense Level of 19. As a result, the Court determined that Defendant’s advisory guideline range was 63-78 months incarceration. If Defendant had not received an enhanced Base Offense Level for a prior crime of violence, he would have been subject to a guideline range of 33-41 months.

The U.S.S.G. defines “crime of violence” as:

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 another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2. The “residual clause” under the sentencing guidelines is identical to the “residual clause” that the Supreme Court found to be unconstitutional in Johnson.

The parties in this case agree that Johnson likely invalidates the residual clause of the sentencing guidelines’ definition of crime of violence. ECF No. 75 at 12. The Court agrees as this is consistent with Ninth Circuit case law on similar issues. See Reina-Rodriguez v. U.S., 655 F.3d 1182 (9th Cir.2011) (applying the Ninth Circuit’s en bane decision in U.S. v. Grisel, 488 F.3d 844 (9th Cir.2007), which altered the definition of crime of violence under ACCA, to the sentencing guidelines’ definition of crime of violence.). Where the parties disagree, however, is whether Johnson and Welch apply retroactively to the guidelines.

d. Retroactive Applicability of Johnson and Welch to the United States Sentencing Commission Guidelines

The Supreme Court has yet to answer whether its decisions in Johnson and Welch apply retroactively to the guidelines. The framework articulated in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), controls whether a new rule applies retroactively to cases on collateral review. Under Teague, if a new rule is determined to be “substantive” it will apply retroactively on collateral review. If it is determined to be “procedural” it generally will not. Id. at 310-13, 109 S.Ct. 1060. Substantive rules include “rules forbidding criminal punishment of certain primary conduct, as well as rules prohibiting a certain category of punishment for a class of- defendants because of their status or offense.” Montgomery v. Louisiana,

The Government argues that the new rule announced in Johnson, when applied to the sentencing guidelines, is procedural because it does not alter the statutory maximum sentence that a Defendant could receive. EOF No. 75 at 17. It is true that the guideline enhancement does not alter the statutorily permitted sentences, it is true that the guidelines are not mandatory, and it is also true that the Defendant in this case could have been sentenced to the same sentence he received even if his sentencing guideline range was calculated correctly under the new definition. The Court, however, finds this argument not controlling.

In fact, just recently the Supreme Court held in Montgomery v. Louisiana, — U.S. -, 136 S.Ct. 718, 727, 193 L.Ed.2d 599 (2016), that the new rule established in Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) was substantive and therefore retroactive. Miller held that juveniles could not be sentenced to life without parole without accounting for their youth. In Montgomery, the Supreme Court acknowledged that some juveniles could still be sentenced to life without parole, which clearly indicates that a new “substantive rule” could still be substantive even though it did not alter the statutorily permissible maximum sentence. What mattered to the Court in Montgomery was that many juvenile defendants were denied a substantive right. Id. (“The fact that life without parole could be a proportionate sentence for [some] does not mean that all other[s] imprisoned under a disproportionate sentence have not suffered the deprivation of a substantive right”).

The advisory guideline range is arguably the single most important piece of information a Court considers in sentencing for a Defendant. Some have called it the “lodestone” of sentencing. Peugh v. United States, — U.S. -, 133 S.Ct. 2072, 2084, 186 L.Ed.2d 84 (2013). Whatever it is called, it has a direct and manifest effect on the sentences a court imposes on defendants who appear before it. Id. (“[W]hen a Guidelines range moves up or down, offenders’ sentences move with it.”). In this case, as in Montgomery and Miller, simply because the new rule does not affect the maximum statutorily permissible sentence that a Court can impose, does not automatically render the rule procedural under Teague. In fact, because of the importance of the sentencing guidelines and the weight judges give them during sentencing, the Court finds that the new rule articulated in Johnson, and made retroactive in Welch, is a substantive rule when applied to the sentencing guidelines’ definition of “crime of violence,” and is, therefore, retroactively applicable.

Furthermore, this result is consistent with binding Ninth Circuit precedent. See Reina-Rodriguez v. U.S., 655 F.3d 1182 (2011), In Reinar-Rodriguez, the Ninth Circuit held that its opinion in United States v. Grisel, 488 F.3d 844 (9th Cir.2007), which altered ACCA’s definition of burglary, announced a new substantive rule. The panel also held that the rule applied retroactively on collateral review in a case where the petitioner was challenging a guidelines calculation and not a sentence under ACCA. Reina-Rodriguez, 655 F.3d at 1189.

e. Effect of Defendant’s Collateral Attack Waiver

In his plea agreement, Defendant Tomisser waived his light to appeal or collaterally attack his sentence pursuant to 28 U.S.C. § 2255. ECF No. 64. An appeal waiver will not apply, however, if:

1) a defendant’s guilty plea failed to comply with Fed. R. Crim. P. 11; 2) the sentencing judge informs a defendant that she retains the right to appeal; 3) the sentence does not comport with the terms of the plea agreement; or 4) the sentence violates the law.

United States v. Bibler, 495 F.3d 621, 624 (9th Cir.2007). “A sentence is illegal if it exceeds the permissible statutory penalty for the crime or violates the Constitution.” Id. (quoting United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir.1986)). Here, Defendant is raising a constitutional argument. Johnson held “that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process.” The same language is found in the sentencing guidelines’ definition of “crime of violence” and is also unconstitutional. Therefore, because Defendant’s sentence “violates the constitution” the Court will not enforce the collateral attack waiver.

f. Effect of the Plea Agreement

The only remaining question is, what remaining effect, if any, does the plea agreement have in this case? During oral argument for this motion, Defense Counsel argued that the plea agreement is not automatically void as a result of resentenc-ing, nor is the Defendant automatically in breach by filing this motion. Whether or not the Defendant will be in breach of the plea agreement when presumably he recommends a sentence less than 78 months as was agreed to by the parties, was not addressed. Nor was there any indication by the government that it would seek to withdraw from the plea agreement if Defendant requests a lower sentence. The Court believes that these questions are best left for the sentencing hearing. For now, the Court grants Defendant’s motion and sets a sentencing hearing in this matter.

III. CONCLUSION

The Court finds that the Supreme Court’s holding in Johnson and Welch are retroactively applicable to the sentencing guidelines’ definition of “crime of violence” as articulated in U.S.S.G. § 4B1.2. Therefore, the Defendant is entitled to a resen-tencing hearing in this matter.

Accordingly, IT IS HEREBY ORDERED:

1. Defendant’s Motion to Vacate Sentence and for Immediate Resentenc-ing, ECF No. 73, is GRANTED.
2. The judgment of this Court, ECF No. 66, is VACATED.
3. The Court SETS a sentencing hearing for Tuesday, August 16, 2016, at 2:00PM in RICHLAND.
4. The United States Probation Office is to prepare an expedited presentence investigation report in advance of the sentencing hearing.
5. The Defendant is required to be present at this hearing.
6. A separate order regarding the schedule of sentencing will issue.

IT IS SO ORDERED. The Clerk’s Office is directed to enter this Order and provide copies to all counsel, the United States Probation Office, and the United State Marshals Service. 
      
      . The Court anticipates that this question will likely be answered in Beckles v. United States, Case No. 15-8544.
     