Lee v. United States

          ORDER GRANTING SECTION 2255 PETITION

          JAMES L. ROBART United States District Judge.

         I. INTRODUCTION

         Before the court is Tracy Damon Lee's petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his 216-month prison sentence in the wake of the Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). (Pet. (Dkt. # 1).) The court has considered Mr. Lee's petition, the United States of America's (“the Government”) answer to Mr. Lee's petition (Answer (Dkt. # 7)), Mr. Lee's reply in support of his petition (Reply (Dkt. # 9)), the relevant portions of the record, and the applicable law. Considering itself fully advised, ^[1] the court GRANTS Mr. Lee's Section 2255 habeas petition and DIRECTS the Clerk to schedule a resentencing for Mr. Lee as set forth below.

         II. BACKGROUND

         A. Legal Background

         In Johnson, the Supreme Court concluded that the Armed Career Criminal Act's (“ACCA”) residual clause, which defines a “violent felony” to include any felony that “involves conduct that presents a serious potential risk of physical injury to another, ”^[2] is unconstitutionally vague.^[3] 135 S.Ct. at 2557. Before Johnson, a defendant convicted of being a felon in possession of a firearm faced a mandatory minimum sentence of 15 years under the ACCA if he had three prior convictions for “violent felonies.” 18 U.S.C. § 924(e)(1). The Court held that “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice and invites arbitrary enforcement by judges” and “[i]ncreasing a defendant's sentence under the clause denies due process of law.” Id. at 2563. The Supreme Court subsequently announced that the rule in Johnson was “a new substantive rule that has retroactive effect in cases on collateral review.” Welch, 136 S.Ct. at 1268.

         At the time of Mr. Lee's sentencing, the ACCA defined a “violent felony” as

any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The ACCA's “violent felony” definition consisted of three parts: (1) the elements clause, (2) the enumerated offenses clause, and (3) the residual clause. See United States v. Ladwig, ___ F.Supp.3d ___, 2016 WL 3619640, at *2 (E.D. Wash. June 28, 2016).

         Mr. Lee contends that he was unconstitutionally sentenced under the residual clause of the ACCA. (Pet. at 7.)

         B. Factual Background

         On November 9, 2006, after a three-day jury trial, Mr. Lee was found guilty of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), conspiracy to obstruct justice, and obstruction of justice. See United States v. Lee, No. CR06-0164JLR (W.D. Wash. Nov. 9, 2006), (Dkt. # 102) (“Jury Verdict”). Mr. Lee also pled guilty to possession of cocaine before the jury trial. Id., (Dkt. # 55) (“Plea Agreement”). On February 15, 2007, Mr. Lee moved for a new trial. Id., (Dkt. #110). The court denied Mr. Lee's motion on March 5, 2007. Id., (Dkt. # 113).

         1. Mr. Lee's Sentencing

         The court sentenced Mr. Lee on May 14, 2007. Id., (Dkt. # 138) (“Sentencing”). The United States Probation Office and the Government both argued that Mr. Lee qualified as an armed career criminal under the ACCA based on three predicate convictions: 1987 Robbery in the First Degree (No. 87-1-00649-9 (Wash. Aug. 5, 1987)) and two counts of federal armed bank robbery in 1992 (No. CR92-0286RSL (W.D. Wash. Nov. 20, 2006). The court agreed. At his sentencing, Mr. Lee urged the court to apply the United States Sentencing Guidelines without imposing the ACCA enhancement because the ACCA was “void for vagueness” and violated “the guarantee of a separation of powers between the judiciary and [C]ongress.” (Pet. at 4); CR06-0164JLR, Sentencing at 3:20-23. The court rejected Mr. Lee's arguments, concluded that the ACCA was constitutional, ^[4] and sentenced Mr. Lee to 216 months in prison based on the three predicate convictions.^[5] Id. at 15:21-23.

         The court based Mr. Lee's sentence on a finding that his total offense level was 33 with a criminal history category of IV, which produced a sentencing range of 188 to 235 months. Id. at 17:12-17. Sentencing under the ACCA increased Mr. Lee's statutory sentencing range from a range of zero to 10 years in prison to a range of 15 years to life. Compare 18 U.S.C. § 924(a)(2), with 18 U.S.C. § 924(e)(1).

         Although it is clear that the court imposed Mr. Lee's sentence under the ACCA, the record is silent as to which ACCA clause the court employed. Specifically, the court did not indicate which of the three clauses Mr. Lee's prior convictions fell under- the elements clause, the enumerated offenses clause, or the now-invalidated residual clause. See CR06-0164JLR, Sentencing.

         2. Mr. Lee's Attempts at Post-Conviction Relief

         After sentencing, Mr. Lee sought post-conviction relief through a number of avenues. Mr. Lee's conviction became final after the Ninth Circuit Court of Appeals denied his direct appeal-on grounds unrelated to the ACCA-on August 27, 2008. United States v. Lee, 290 Fed.App'x 977 (9th Cir. 2008). In February 2010, Mr. Lee filed his first petition under 28 U.S.C. § 2255, challenging both his conviction and sentence. CR06-0164JLR, Dkt. #146 (“First Pet.”). In his petition, Mr. Lee raised six grounds for habeas relief: two related to ineffective assistance of counsel, three related to government misconduct, and one attacking his sentence based on the argument that the ACCA did not apply because his armed robbery convictions-of a Seafirst Bank on February 11, 1992, and a U.S. Bank on May 28, 1992-should count as a single ...