United States District Court, W.D. Washington, Seattle
ORDER GRANTING SECTION 2255 PETITION
L. ROBART United States District Judge.
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,  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.
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,
” is unconstitutionally vague. 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.
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).
contends that he was unconstitutionally sentenced under the
residual clause of the ACCA. (Pet. at 7.)
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. #
Mr. Lee's Sentencing
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,
sentenced Mr. Lee to 216 months in prison based on the three
predicate convictions. Id. at 15:21-23.
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).
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
Mr. Lee's Attempts at Post-Conviction Relief
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