Gill v. United States

          ORDER

          HONORABLE RICHARD A. JONES, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on Petitioner Cory Eugene Gill's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody. Dkt. # 1. For the reasons that follow, the Court GRANTS Gill's motion.

         II. BACKGROUND

         On May 10, 2011, Gill pleaded guilty to seven counts of bank robbery in violation of 18 U.S.C. § 2113(a). United States v. Cory Eugene Gill, Case No. CR11-77-RAJ, Dkt. ## 5-6 (W.D. Wash. May 10, 2011). Those counts were charged under three separate case numbers: CR11-26-RAJ, CR11-66-RAJ, and CR11-77-RAJ. At a consolidated sentencing hearing, the Court examined Gill's criminal history, which included: (1) a 1998 federal bank robbery conviction, 18 U.S.C. § 2113(a); and (2) a 2000 Nevada robbery conviction, NRS § 200.380. PSR ¶ 80. The Court determined that Gill qualifies as a career offender under § 4B1.1 of the 2010 United States Sentencing Guidelines (“U.S.S.G.”) because his instant bank robbery convictions and his two previous convictions were “crimes of violence, ” a term defined by U.S.S.G § 4B1.2(a). PSR ¶¶ 25, 80. Based on this determination, the Court set a guideline range of 151 to 188 months. Gill, Case No. CR11-77-RAJ, Dkt. # 14 at 3-5. Had he not been found to qualify as a career offender, his guideline range would have been 100 to 125 months. See PSR ¶¶ 79, 81; U.S.S.G. § 5A. The Court sentenced Gill to three concurrent terms of 50 months to be served consecutively with a 108-month sentence imposed by the Northern District of Texas, amounting to an effective prison term of 158 months. Gill, Case No. CR11-77-RAJ, Dkt. # 14 at 30.

         On June 15, 2016, Gill filed a petition under 28 U.S.C. § 2255 challenging the Court's determination that he qualifies as a career offender. Dkt. # 1. Gill contends that his instant and prior convictions do not qualify as crimes of violence, and thus, that it was improper to sentence him as a career offender. Id. The Government opposes the motion. Dkt. # 8.

         III. LEGAL STANDARD

         Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion to vacate, set aside, or correct his or her sentence “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .”

         IV. DISCUSSION

         The issue is whether Gill was sentenced properly as a career offender. Under the guidelines, a defendant is a career offender if:

(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a 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.

U.S.S.G. § 4B1.1. The term “crime of violence” includes any federal or state offense punishable by more than one year in prison that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another, ” (2) “is burglary of a dwelling, arson, or extortion, involves use of explosives, ” or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” These three categories are known respectively as the (1) “elements clause, ” the (2) “enumerated offenses clause, ” and the (3) “residual clause.” U.S.S.G. § 4B1.2. Carpio v. United States, No. ___ F.Supp. ___, C16-0647-JLR, 2016 WL 6395192, at *1 (W.D. Wash. Oct. 28, 2016), The residual clause of § 4B1.2 is in a state of uncertainty. On June 26, 2015, the Supreme Court held that an identical clause in the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551, 2557 (2015) (“Johnson II”). In a subsequent decision, the Supreme Court held that Johnson applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). The Court has not yet resolved whether these decisions invalidating the ACCA's residual clause apply with equal force to the residual clause of § 4B1.2.^[1]

         Here, Gill contends that the Supreme Court's decision in Johnson II disqualifies his instant and prior convictions as “crimes of violence” sufficient to sentence him as a career offender. The Government opposes this contention on the basis that his claims are procedurally ...