United States District Court, W.D. Washington, Tacoma
ORDER GRANTING PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
BENJAMIN H. SETTLE, UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner James Russell
Knox's (“Knox”) motion to vacate, set aside
or correct sentence pursuant to 28 U.S.C. § 2255. Dkt.
1. The Court has considered the pleadings filed in support of
and in opposition to the motion and the remainder of the file
and hereby grants the motion for the reasons stated herein.
February 17, 2009, Knox pled guilty to unarmed bank robbery
in violation of 18 U.S.C. § 2113(a). CR08-5828, Dkts.
37, 38. The Court adopted the findings of the Presentence
Report (“PSR”) that Knox's offense of unarmed
bank robbery and his previous offense of armed bank robbery
under 18 U.S.C. §2113(a) and (d) qualified as
“crimes of violence” under U.S.S.G. §
4B1.2(a). The Court therefore calculated Knox's
Sentencing Guidelines range as 151-188 months imprisonment.
On May 18, 2009, the Court sentenced Knox to 168 months of
imprisonment. Id., Dkts. 44, 45.
18, 2016, Knox filed the instant petition. Dkt. 1. Knox
argues that his sentence was improperly enhanced under the
career offender residual clause of U.S.S.G. §
4B1.2(a)(2) and seeks relief under Johnson v. United
States, 135 S.Ct. 2551 (2015), and Welch v. United
States, 136 S.Ct. 1257 (2016). Id. On October
17, 2016, the Government responded. Dkt. 9. On November 16,
2016, Knox replied. Dkt. 10.
Government argues that Knox's § 2255 petition is
procedurally barred on the grounds that (1) the petition is
untimely, (2) Knox procedurally defaulted his argument that
unarmed robbery is not a crime of violence, and (3) Knox
waived his right to collaterally attack his sentence.
See Dkt. 9 at 6-11.
petition is timely. A § 2255 motion is timely if filed
within one year from “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.” 28 U.S.C. §2255(f)(3). This Court has
previously stated that “Johnson announced a
new substantive rule and substantive rules may be
retroactively applied to collaterally attack the career
offender residual clause of the Sentencing Guidelines.”
Gibson v. United States, C15-5737 BHS, 2016 WL
3349350, at *2 (W.D. Wash. June 15, 2016). Johnson
was decided on June 26, 2015. 135 S.Ct. 2551. Knox filed his
petition less than a year later, on June 18, 2016. Dkt. 1.
has not procedurally defaulted his claim. “[T]o obtain
collateral relief based on trial errors to which no
contemporaneous objection was made, a convicted defendant
must show both (1) ‘cause' excusing his double
procedural default, and (2) ‘actual prejudice'
resulting from the errors of which he complains.”
United States v. Frady, 456 U.S. 152, 167-68 (1982).
At the time of Knox's conviction, his present argument,
that the career offender residual clause of the Guidelines is
unconstitutionally vague, was sufficiently novel “that
its legal basis [was] not reasonably available to
counsel.” Reed v. Ross, 468 U.S. 1, 16 (1984).
See Gilbert v. United States, C15-1855 JCC, 2016 WL
3443898, at *3 (W.D. Wash. June 23, 2016). The application of
the career offender residual clause resulted in a higher
Sentencing Guidelines range calculation than Knox would have
otherwise received. “[W]hen a Guidelines range moves up
or down, offenders' sentences move with it.”
Peugh v. United States, 133 S.Ct. 2072, 2084 (2013).
Accordingly, Knox can demonstrate both cause and prejudice.
when Knox entered his plea agreement, he did not waive his
right to collaterally attack his sentence based on these
grounds. If Knox's Sentencing Guidelines calculation was
based on the career offender residual clause, then his
sentence violates the law; therefore, his appellate waiver
does not apply. United States v. Bibler, 495 F.3d
621, 624 (9th Cir. 2007); O'Leary v. United
States, C16-5531 BHS, 2016 WL 6650998, at *1 (W.D. Wash.
Nov. 10, 2016); Dietrick v. United States, No.
C16-705 MJP, 2016 WL 4399589, at *2 (W.D. Wash. Aug. 18,
2016); Gilbert v. United States, Case No.
15-cv-1855-JCC, 2016 WL 3443898, at *2 (W.D. Wash. June 23,
argues that his sentence is unconstitutional on the basis
that it was enhanced under the career offender residual
clause in U.S.S.G. § 4B1.2(a)(2). At sentencing, the
Court found Knox to be a career offender under the Sentencing
Guidelines. This finding was based on Knox's previous
conviction of armed bank robbery and his present conviction
of unarmed bank robbery. In applying the career offender
guideline, the Court cited U.S.S.G. § 4B1.2(a) but
failed to specify under which specific clause Knox's
conviction of unarmed bank robbery qualified as a
“crime of violence.”
determining whether previous offenses are predicates under
U.S.S.G. § 4B1.2(a), courts may rely upon the enumerated
offenses, the “elements clause, ” or the