United States District Court, W.D. Washington, Seattle
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
...