United States District Court, E.D. Washington
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY; ORDER CLOSING FILES
JUSTIN L. QUACKENBUSH, Senior District Judge.
BEFORE THE COURT, without oral argument, is Defendant William J. Lawrence's (Lawrence) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 79). The Government was served with the Motion and ordered to respond. The Government responded on July 18, 2014 (ECF No. 81), to which Lawrence replied on August 15, 2014 (ECF No. 82).
Lawrence seeks a corrected sentence, arguing his 2006 Sentencing Guidelines should not have included the USSG § 4B1.1 career offender enhancement because his prior 1989 Montana burglary conviction should not have counted as a "violent felony" in light of the Supreme Court's ruling in Descamps v. United States, 133 S.Ct. 2276 (2013). Lawrence contends his Motion is timely under 28 § 2255(f)(3) because Descamps created a newly recognized right retroactively applicable to collateral review. For the reasons set forth below, the court denies Lawrence's Motion.
In 1989, Lawrence pleaded guilty to violating Montana's burglary statute, Mont. Code Ann. § 45-6-204(1). (ECF No. 7 at 7); (ECF No. 82 at 11). In 1998, Lawrence was convicted of bank robbery in federal court. (ECF No. 48); (ECF No. 70 at 15).
In August 2006, Lawrence pleaded guilty in the instant case to two counts of Credit Union Robbery, 18 U.S.C. § 2113(a), stemming from robberies of Horizon Credit Union on April 7 and March 7, 2006, in which he took $2, 572 and $6, 540, respectively. (ECF No. 10); (ECF No. 44). At sentencing, the Government argued that Lawrence should be considered a career offender because of his 1989 Montana burglary and 1998 federal court bank robbery convictions. Pursuant to USSG § 4B1.1, the elements of being a career offender are: (1) the defendant was at least eighteen years old at the time of the instant offense; (2) the instant offense was a crime of violence or controlled substance offense, and; (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. One of the definitions of a "crime of violence" is a felony burglary of a dwelling. USSG § 4B1.2.
This court determined that Lawrence was a career offender which raised his Guideline sentencing range to 155-188 months. (ECF No. 48 at 2). At sentencing, both parties agreed that the prior 1998 bank robbery qualified as a crime of violence, but Lawrence contended the 1989 Montana burglary did not, thus disqualifying him as a career offender. He argued that the Montana burglary was not a crime of violence because the home he allegedly burglarized was not occupied. Lawrence argued that without the career offender enhancement his guideline range should have been 70-87 months. (ECF No. 51 at 11-12). The statutory maximum penalty for bank robbery, violating 18 U.S.C. § 2113(a), is twenty years imprisonment, or 240 months. The court sentenced Lawrence to fourteen years imprisonment, or 168 months, and three years of supervised release.
On June 20, 2013, the Supreme Court decided Descamps v. United States , holding that sentencing courts may not consult the factual record of a prior "indivisible" conviction in determining whether that conviction counts as a "crime of violence" for sentencing enhancement when the statute the defendant was convicted of violating is indivisible and broader than its generic counterpart. 133 S.Ct. 2276 (2013).
On June 16, 2014, Lawrence filed his Motion to Vacate, Set Aside, or Correct Sentence in the instant matter pursuant to 28 U.S.C. § 2255, arguing that Descamps created a newly recognized right retroactively applicable on collateral review that should remove his 2006 sentencing enhancement. (ECF No. 79).
The first threshold issue is whether Lawrence's Motion is timely under 28 U.S.C. § 2255, which requires the defendant to advance a newly recognized right retroactively applicable on collateral review. If the Motion is timely, then the next step is determining whether it is cognizable, meaning the Motion can be granted only if the challenged sentence was unconstitutional or a complete miscarriage of justice. Finally, if the Motion is timely and cognizable, then the merits are considered: whether Lawrence's sentence should have included the enhancement in light of Descamps.
A. Timeliness under 28 U.S.C. § 2255
28 U.S.C. § 2255(f)(3) states that: "A one year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of - 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." Here, Lawrence contends that Descamps created a newly recognized right that limits the category of persons whom the law punishes as career offenders and that this new right is retroactively applicable on collateral review. (ECF No. 82 at 4-5). ...