
    UNITED STATES of America, Plaintiff-Respondent, v. Corbin James KENNEDY, Defendant-Petitioner.
    CASE NO. 1:12-CR-414-LJO-SKO-1
    United States District Court, E.D. California.
    Signed November 3, 2016
    
      Fresno Forfeiture Unit, Melanie Leigh Alsworth, Govt, United States Attorney’s Office, Fresno, CA, for Plaintiff-Respondent,.
    Marc Days, Federal Defender, Fresno, CA, for Defendant-Petitioner.
   MEMORANDUM DECISION AND ORDER GRANTING PETITIONER’S § 2255 MOTION AND DENYING GOVERNMENT’S RENEWED MOTION TO STAY: TIME SENSITIVE ORDER

(ECF Nos. 23, 32)

Lawrence J. O’Neill, UNITED STATES CHIEF DISTRICT JUDGE

I. INTRODUCTION

Before the Court is Petitioner Corbin James Kennedy’s (“Petitioner” or “Kennedy”) motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, filed on June 21, 2016. ECF No. 23. On August 10, 2016, the Government filed a motion to stay 'Petitioner’s § 2255 motion. ECF No. 26. The Court initially granted the Government’s motion, but vacated the stay upon Petitioner’s motion for reconsideration. ECF No. 31. The Government filed its merits opposition, along with a renewed motion to stay, on September 30, 2016. ECF No. 37. Petitioner filed a merits reply on October 25, 2016. ECF No. 33. Having considered the parties’ briefing and the record in this case, the Court GRANTS Petitioner’s motion and DENIES AS MOOT the Government’s renewed motion to stay.

II. BACKGROUND

On May 13, 2013, Petitioner was sentenced to 63 months in prison after pleading guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). ECF Nos. 21, 22. At sentencing, he was found to qualify for a sentencing enhancement under United States Sentencing Guidelines (“USSG” or “Guidelines”) § 2K2.1(a)(3) because the underlying offense involved a firearm described in 26 U.S.C. § 5845(a) and because Petitioner had committed the underlying offense subsequent to. sustaining a conviction for a “crime of violence,” attempted grand theft of a person, in violation of Cal. Penal Code (“CPC”) § 487(c). ECF No. 23 at 7-8 ; see also Presentence Report (“PSR”), ECF No. 16 at 5-6. With the enhancement, Petitioner’s base offense level was set at 22. PSR at 5-6. Three points were subtracted for acceptance of responsibility, bringing his total offense level to 19 with a criminal history category of VI. Id. at 6, 13. The applicable Guidelines range was determined to be 63 to 78 months. Id. at 3. On May 15, 2013, the Court entered a judgment sentencing Petitioner to 63 months in prison. ECF No. 22.

Without the applicable sentencing enhancement under § 2K2.1(a)(3), the base offense level would have been set at 20 pursuant to USSG § 2K2.1(a)(4), bringing his total offense level down two points to 17. ECF No. 23 at 8. The corresponding Guidelines range for an offense level of 17 with a criminal history category of VI is 51 to 63 months. Id.; USSG Chap. 5, Part A.

Petitioner did not appeal his conviction or sentence. ECF No. 23 at 8. This is his first motion under 28 U.S.C. § 2255. Id.

III.STANDARD OF DECISION

Section 2255 provides four grounds upon which a sentencing court may grant relief to a petitioning in-custody defendant:

[1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack.

28 U.S.C. § 2255(a). Generally, only a narrow range of claims that fall within the scope of § 2255. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). The alleged error of law must be “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (quoting Hill v. United States, 368 U.S. 424, 429, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).

IV. DISCUSSION

Petitioner challenges his sentence on the basis that the Guidelines calculation underlying his sentence incorporated the same definition of a “crime of violence” that the Supreme Court determined was unconstitutionally vague in the context of the Armed Career Criminal Act (“ACCA”) in Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 2563, 192 L.Ed.2d 569 (2015). Without the two-point sentencing enhancement, the sentencing range applicable to Petitioner would have been 51 to 63 months, rather than 63 to 78 months. ECF No. 23 at 7-8.

The ACCA provides that a defendant with three prior convictions for violent felonies must be sentenced to a mandatory minimum of 15 years in prison. 18 U.S.C. § 924(e)(2)(B). The ACCA defined the term “violent, felony” in three clauses: the elements clause, the enumerated clause, and the residual clause. Id. Under the residual clause, a ‘violent felony’ is one that “involves conduct that presents a serious potential risk of physical injury to another.” §. 924(e)(2)(B)(ii). In Johnson, the Supreme Court determined that the residual clause was unconstitutionally vague such that it “violate[d] the Constitution’s guarantee of due process.” 135 S.Ct. at 2563. In Welch v. United States, the Supreme Court held that its decision in Johnson announced a new substantive rule that applies retroactively to cases on collateral review. — U.S. —, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016)

Although Petitioner was sentenced under the Guidelines rather than the ACCA, the Guidelines’ definition of “crime of violence” includes an identical residual clause to the one held to be unconstitutionally vague in Johnson. USSG § 4B1.2(a) (“the term ‘crime of violence’ means any offense ... [that] otherwise involves conduct that presents a serious potential risk of physical injury to another”); see also United States v. Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013) (holding that the Ninth Circuit makes “no distinction between the terms ‘violent felony [as defined in the ACCA] and ‘crime of violence’ [as defined in § 4B1.2(a)(2) of the Sentencing Guidelines] for purposes of interpreting the residual clause[s]”). The Government concedes -that the residual clause of § 4B1.2(a)(2) is unconstitutionally vague after Johnson. ECF No. 32 at 17. The Government further concedes that after Johnson, Petitioner’s conviction for evading a peace officer under CPC § 487(c) is not a “crime of violence” within the meaning of remaining clauses of § 4B1.2(a). Id. at 23.

Nonetheless, the Government contends that Petitioner is not entitled to relief under 28 U.S.C. § 2255 for two reasons. First, the Government asserts that Petitioner procedurally defaulted his § 2255 claim because he did not raise the argument that the residual clause of § 4B1.2(a) was unconstitutionally vague on direct appeal. Id. at 13-17. Second, the Government argues that Johnson does not apply retroactively to challenges under the Sentencing Guidelines. Id. at 17-23.

A. Procedural Default

To overcome a procedural default on collateral review, Petitioner must show cause and actual prejudice. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). To show “cause”, a defendant “must ordinarily. . .show that some factor external to the defense impeded counsel’s efforts to comply. . .with the procedural rule.” Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). A constitutional claim is sufficiently novel where its “legal basis [was] not reasonably available to counsel.” Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). As the Supreme Court explained in Reed, a claim is not reasonably available to counsel where “a decision of this Court.. .explicitly overruled] one of our precedents.” Id. at 17, 104 S.Ct. 2901.

Here, Johnson explicitly overruled two Supreme Court cases holding that the residual clause of the ACCA was constitutional. James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007); Sykes v. United States, 564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011). In James, the majority rejected the notion that the ACCA was unconstitutionally vague, stating: “[t]he statutory requirement that an unenumerated crime ‘otherwise involv[e] conduct that presents a serious potential risk of physical injury to another’ is not so indefinite as to prevent an ordinary person from understanding what conduct it prohibits.” 550 U.S. at 210 n.6, 127 S.Ct. 1586. Similarly, in Sykes, the majority declined the dissent’s suggestion that the Court “admit that ACCA’s residual provision is a drafting failure and declare it void for vagueness.” 564 U.S. at 28, 131 S.Ct. 2267 (Scalia, J., dissenting). Shortly before Johnson was decided, the Ninth Circuit recognized that both “Supreme Court and Ninth Circuit precedent foreclose” arguments “that the ACCA’s residual clause is unconstitutionally vague.” United States v. Martinez, 771 F.3d 672, 678 (9th Cir. 2014).

Petitioner was sentenced on May-13, 2013, after James and Sykes, but before Johnson. Therefore, at the time Petitioner was sentenced, a vagueness challenge to the identically worded residual clause in § 4B1.2(a) was foreclosed by Supreme Court precedent. See United States v. Garcia, 202 F.Supp.3d 1109, 1113-14, 2016 WL 4364438, at *3 (N.D. Cal. 2016) (petitioner challenging § 4B1.2(a) did not procedurally default argument by not raising it on direct appeal because argument was not “reasonably available” before Johnson); United States v. Dean, 169 F.Supp.3d 1097, 1107-08 (D. Or. 2016) (same); Gilbert v. United States, Nos. C15-1855 JCC, 2016 WL 3443898, at *2-3 (W.D. Wash. June 23, 2016) (same); United States v. Stamps, No. CR 13-238 CW, 2016 WL 3747286, at *3 (N.D. Cal. June 29, 2016) (same); United States v. Snead, No. CR 12-0649 CW, 2016 WL 4091548, at *3 (N.D. Cal. Aug. 2, 2016) (same).

Petitioner must also show prejudice by demonstrating that the alleged error “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” United States v. Braswell, 501 F.3d 1147, 1150 (9th Cir. 2007) (quoting United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). In sentencing Petitioner to 63 months in prison, this Court adopted the United States Probation Office’s (“Probation”) findings and recommendation that 63 to 78 months was the appropriate sentencing range under the Guidelines, and then sentenced Petitioner to the low end of the Guidelines range. Had Petitioner not been eligible for an enhancement under § 2K2.1(a)(3), the applicable Guidelines range would have been 51 to 63 months. USSG § 2K2.1(a)(4). Therefore, it is highly probable that Petitioner’s sentence would have been lower had this Court not sentenced him under the Guidelines’ residual clause. Because Petitioner’s claim was not “reasonably available” at the time of his direct appeal, and because he was prejudiced by the alleged error, he has established cause to excuse any procedural default.

B. Retroactive Application of Johnson to the Sentencing Guidelines

In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme Court laid out the test for determining whether one of its opinions should apply retroactively to a final judgment in a criminal case. There are three steps to the Teague inquiry:

First, the court must determine when ' the defendant’s conviction became final. Second, it must ascertain the legal landscape as it then existed, and ask whether the Constitution, as interpreted by the precedent then existing, compels the rule. That is, the court must decide whether the rule is... ‘new.’ Finally, if the rule is new, the court must consider whether it falls within either of the two exceptions to nonretroactivity.

Beard v. Banks, 542 U.S. 406, 411, 124 S.Ct. 2504, 159. L.Ed.2d 494 (2004) (internal quotation marks and citations omitted). The two exceptions to nonretroactivity identified in Teague are: (1) if. the new rule places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” and (2) “if it requires the observance of those, procedures that... are implicit in the concept of ordered liberty.” 489 U.S. at 311, 109 S.Ct. 1060. These two exceptions are categorized as the exception for “substantive rules” and the exception for “watershed rules of criminal procedure.” Schriro v. Summerlin, 542 U.S. 348, 351, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004).

The Court entered a final judgment sentencing Petitioner on November 15, 2013. Petitioner did not appeal his conviction or sentence. As the Government concedes, the rale announced in Johnson was new because Johnson overruled prior Supreme Court precedent. 136 S.Ct. at 1264; (EOF No. 37 at 16). The first two prongs of the Teague analysis are satisfied.

As the Supreme Court held in Welch, “Johnson does not fall into the limited second category for watershed procedural rales.” Id. Therefore, the remaining question is whether the rule announced in Johnson is substantive as it applies to the Sentencing Guidelines.

In Welch, the Court held that Johnson announced a new, substantive rale that changed the.. .reach of the [ACCA].. .altering the range of conduct or the class of persons that the law punishes.” Id. at 1264-65 (internal quotations marks and citations omitted). The Court went on to explain that before Johnson, a person with three violent felony convictions who possessed a firearm would face 16 years in prison, whereas after Johnson, the same person would face at most 10 years in prison. Id. at 1265. According to the Court, “even the use of impeccable factfinding procedures could not legitimate a sentence based on [the residual] clause.” Id. (internal quotation marks and citations omitted). Therefore, “[i]t follows that Johnson is a substantive decision.” Id. The Court further concluded that Johnson was not a procedural decision, noting that it did not affect the “range of permissible methods a court might use to determine whether a defendant should be sentenced under the [ACCA], nor did it “allocate decisionmak-ing authority between judge and jury... or regulate the evidence the court could consider in making its decision.” Id. (internal quotation marks and citations omitted).

The Court’s reasoning in Welch applies with equal force in the context of the Sentencing Guidelines. The elimination of the residual clause narrows the scope of the sentencing enhancement, and changes the conduct and the class of persons that are subject to it. This case illustrates the change in the “range of conduct or class of persons” punished as a result of Johnson. Welch, 136 S.Ct. at 1264-65. While the recommended sentence for Petitioner under the Guidelines was 92 to 115 months with the sentencing enhancement under § 2K2.1(a), without the enhancement it is 63 to 78 months. As in Johnson, the “same person engaged in the same conduct is no longer subject to” the same sentencing range if the sentencing enhancement provision no longer applies. Id. at 1265. The invalidation of the residual clause moves Petitioner from one class of defendants under the Guidelines to another. That is how the Supreme Court has defined “substantive” decisions for the purpose of determining retroactivity. Id.; see also Montgomery v. Louisiana, — U.S. —, 136 S.Ct. 718, 725, 736, 193 L.Ed.2d 599 (2016) (holding that new ruling that juveniles could not be sentenced to life without parole without accounting for their youth applied retroactively because, although some juveniles would still be sentenced to life without parole, many would not be). Furthermore Johnson did not announce a procedural rule with respect to the Guidelines for the same reasons it did not announce one with respect to the ACCA. The removal of the residual clause in the Guidelines does not change the procedures that a judge goes through in sentencing, nor does it change the evidence that the court considers. Rather, it changes the scope of the enhancement itself.

Other courts in this circuit have held that Johnson applies retroactively to the residual clause in § 4B1.2(a) of the Guidelines. As it does for the ACCA, “Johnson substantively changes the conduct by which federal courts may enhance the sentence of a defendant under the Guidelines.” Snead, 2016 WL 4091548, at *5 (quoting Dean, 169 F.Supp.3d at 1119); see also Stamps, 2016 WL 3747286, at *5-6 (same); Gilbert, 2016 WL 3443898, at *4. This analysis is also consistent with controlling Ninth Circuit precedent. In Reina-Rodriguez v. United States, 655 F.3d 1182, 1189 (9th Cir. 2011), the Ninth Circuit determined that its prior decision in United States v. Grisel, 488 F.3d 844 (9th Cir. 2007), should apply retroactively. In Grisel, the court held that second-degree burglary under Oregon law was not categorically burglary for purposes of determining whether a sentencing enhancement should apply under the ACCA. 488 F.3d at 850-51. In Reina-Rodriguez, the Ninth Circuit considered whether Grisel was a substantive rule that therefore applied retroactively under Teague in the context of the Sentencing Guidelines, not the ACCA. 655 F.3d at 1189. Without distinguishing between Grisel in the ACCA context and Grisel in the Guidelines context, the Ninth Circuit determined that Grisel should apply retroactively to the Guidelines enhancement. Id. at 1189-90. In so holding, the Ninth Circuit implicitly found that “a rule that is substantive in the first context is substantive in the second. context.” Dean, 169 F.Supp.3d at 1118. Therefore, under Reina-Rodriguez, Johnson is a substantive rule in the Guidelines context. Garcia, 202 F.Supp.3d at 1117-18, 2016 WL 4364438, at *6.

The Government’s argument that errors in sentencing under the Guidelines are procedural rather than substantive is misplaced. The Court’s reasoning in Welch for applying Johnson retroactively does not hinge on the fact that the ACCA imposed a mandatory minimum rather than a discretionary sentencing range. Rather, the Court noted that whether a rule is substantive or procedural turns on “the function of the rule at issue.” Welch, 136 S.Ct. at 1266. As the Court held, where a new rule affects the scope of the conduct or class of persons impacted by the rule, it is substantive. Id. at 1265. Although the Guidelines are advisory, judges must consider them during sentencing. Peugh v. United States, — U.S. —, 133 S.Ct. 2072, 2084, 186 L.Ed.2d 84 (2013). The Supreme Court recently observed that “when a Guidelines range moves up or down, offenders’ sentences- move with it.” Id. at 2084 (noting that the Guidelines “remain the lodestone of sentencing”). After Johnson, certain defendants, like Petitioner, will no longer be eligible for certain enhancements and will most likely be given shorter sentences. Johnson therefore altered the “range of conduct or class of persons” that the Guidelines punish. Gilbert, 2016 WL 3443898, at *4; see also Montgomery, 136 S.Ct. at 725, 736 (new rule was substantive and retroactive even though courts maintained discretion in sentencing).

Because Johnson applies retroactively to the Sentencing Guidelines, Petitioner succeeds in showing that his sentence was imposed in violation of the Constitution. Therefore, the Court GRANTS his § 2255 petition, VACATES his sentence, and orders that a new sentencing hearing be set.

V. CONCLUSION AND ORDERS

Accordingly, IT IS HEREBY ORDERED:

1. In light of Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), Petitioner Corbin Kennedy’s Motion to Vacate, Set Aside, or Correct Sentence pursuant to § 2255 (ECF No. 23) is GRANTED.
2. Petitioner’s sentence (ECF No. 22) is VACATED.
3. Probation SHALL file a short supplement to the Presentence- Report (ECF No. 16) on or before November 14, 2016, advising the Court of any relevant information pertaining to Petitioner’s time in custody.
4. The Court ORDERS that a resen-tencing hearing be set for Monday, November 21, 2016 at 10:00 AM. The parties SHALL file all further documents pertaining to resentencing on or before November 17, 2016. The reason for the expedited sentencing is that Petitioner may be eligible for immediate release.
5. The Government’s renewed motion to stay is DENIED AS MOOT.

IT IS SO ORDERED. 
      
      . Pincites refer to CM/ECF pagination located at the top of each page.
     
      
      . At the time Petitioner was sentenced, section 4B.1.2(a) of the Guidelines provided as follows:
      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 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.
      
      USSG § 4B1.2(a) (emphasis added).
     
      
      . The majority of the courts of appeal to have considered this issue have assumed that Johnson invalidates § 4B1.2(a)(2)’s residual clause. See, e.g., United States v. Soto-Rivera, 811 F.3d 53, 59 (1st Cir. 2016); United States v. Welch, 641 Fed.Appx. 37, 43 (2d Cir. 2016) (per curiam); United States v. Calabretta, 831 F.3d 128, 133-34 (3d Cir. 2016); United States v. Frazier, 621 Fed.Appx. 166, 168 (4th Cir. 2015) (per curiam); Order, United States 
        v. Estrada, No. 15-40264 (5th Cir. Oct. 27, 2015); United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016); Ramirez v. United States, 799 F.3d 845, 856 (7th Cir. 2015); United States v. Taylor, 803 F.3d 931, 932-33 (8th Cir. 2015) (per curiam); United States v. Benavides, 617 Fed.Appx. 790, 790 (9th Cir. 2015) (per curiam); United States v. Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015); In re Booker, No. 16-3018 (D.C. Cir. June 10, 2016). The issue of whether the residual clause of § 4B1.2(a) is void for vagueness is currently pending before the Supreme Court. Beckles v. United States, 616 Fed.Appx. 415, 416 (11th Cir. 2015), cert. granted, — U.S. —, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016).
      
     
      
      . The Court assumes, without deciding, that the residual clause of § 4B 1.2(a)(2) is unconstitutionally vague after Johnson and that CPC § 487(c) is not a "crime of violence” under the enumerated or elements clauses of § 4B 1.2(a).
     
      
      . The Supreme Court granted certiorari in Martinez and vacated the decision in light of Johnson. 135 S.Ct. 2939 (2015).
     