United States District Court, E.D. Washington
MEMORANDUM OPINION AND ORDER RE: MOTION TO
L. QUACKENBUSH, SENIOR UNITED STATES DISTRICT JUDGE.
THE COURT is the Defendant's Motion to Vacate (ECF No.
85). Defendant seeks to vacate his sentence pursuant to 28
U.S.C. § 2255 based on Johnson v. U.S., 135
S.Ct. 2551 (2015). Defendant argues Johnson makes
the residual clause of U.S.S.G. § 4B1.2(a) void for
vagueness. He also argues this court should re-evaluate its
findings at sentencing (which did not rely on the residual
clause) that he had two or more qualifying convictions in
light of the current legal landscape and find his Robbery and
Riot convictions are not currently crimes of violence. As a
result, Defendant asserts he did not qualify as a career
offender and should be re-sentenced without that enhancement
applied to his Guideline Range.
response, the Government conceded Johnson
invalidates the residual clause of U.S.S.G. § 4B1.2(a),
but opposed the Motion and requested a stay pending the
Supreme Court decision in Beckles v. U.S., No.
15-8544. (ECF No. 88). Because of the Government's
request for a stay, the court directed the parties to file
supplemental briefs addressing whether a stay should be
entered. Defendant asserted this matter should not be stayed
and his Motion should be granted based on the currently
existing case law. (ECF No. 93). The Government argued a stay
should be entered to promote judicial economy since
Beckles would be dispositive on the threshold issues
in the instant matter. (ECF No. 94).
March 6, 2017, the Supreme Court rendered its decision in
Beckles, holding “the advisory Guidelines are
not subject to vagueness challenges under the Due Process
Clause.” Beckles v. U.S., __ S.Ct. __, 2017 WL
855781 at *3 (March 6, 2017). The same day, Defendant filed a
Notice requesting the court to wait 14 days before issuing a
ruling on the Motion so counsel could discuss
Beckles with her client. (ECF No. 96). That time has
passed and no filing has been made.
Motion to Vacate was submitted to this court for hearing
without oral argument. This Order memorializes the
court's rulings on this matter.
March 30, 2010, a Criminal Complaint was filed alleging the
Defendant, Kenneth Crause, was illegally in possession of six
firearms. (ECF No. 1). When officers executed a search
warrant for Defendant's vehicle, they found approximately
four ounces of methamphetamine. The laboratory analysis
determined the substance weighed 166.2 grams and was 41.3%
pure, resulting in 68.6 grams of actual or pure
methamphetamine. The search of the residence revealed six
firearms, a black-powder pistol, and numerous rounds of .22
caliber ammunition. After waiving his Miranda
rights, Defendant later admitted to possessing the firearms
knowing they were stolen.
April 6, 2010, an Indictment was returned charging Defendant
with being a Felon in Possession of a Firearm in violation of
18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924. (ECF No.
12). Although not initially charged, the amount of
methamphetamine found in Defendant's possession, if
charged, would have mandated a minimum of 20 years of
incarceration based on his prior felony drug conviction.
See 21 U.S.C. §841(b)(1)(A)(viii); 21 U.S.C.
1, 2010, Defendant pleaded guilty to an Information
Superseding Indictment charging him with: (1) Possession of a
Stolen Firearm in violation of 18 U.S.C. § 922(j),
924(a)(2), and 18 U.S.C. § 2; and (2) Possession with
Intent to Distribute 50 Grams or More of a Mixture or
Substance Containing a Detectable Amount of Methamphetamine
in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(viii).
(ECF No. 28); (ECF No. 32). The Information Superseding
Indictment also alleged Defendant had two prior qualifying
drug convictions which mandated a term of incarceration of no
less than 10 years on the drug charge pursuant to 21 U.S.C.
§ 841(a). (ECF No. 28).
August 20, 2010, the court held a sentencing hearing wherein
the court addressed Defendant's criminal history. At the
time of sentencing, Defendant had numerous adult felony
convictions, including convictions for three counts of Felony
Riot in Washington, a First Degree Robbery conviction in
Oregon, and Unlawful Possession of a Controlled Substance
with Intent to Deliver in Washington. Defendant had a total
of 23 points of Criminal History. Only 13 points was needed
to be in Category VI, the highest category of criminal
court found Riot could not be considered a crime of violence
under the categorical approach because the statute included
offenses against property. (ECF No. 52 at 1). However, the
court found Defendant's Riot convictions were crimes of
violence under the modified categorical approach because
Defendant was charged with “use and threaten to use
force against a human being” on each count in the
charging document. (ECF No. 52 at 1). Because Riot was found
to be a crime of violence under the “use of
force” clause, and based on the unchallenged controlled
substance conviction, the court found Defendant was a Career
Offender under U.S.S.G. § 4B1.2. (ECF No. 52).
September 21, 2012, the court sentenced Defendant to 120
months imprisonment on the firearm charge, the statutory
maximum. (ECF No. 72). The court also varied downward from
the Guideline Range and imposed 156 months incarceration on
the drug charge, to run concurrently with the firearm
sentence. (ECF No. 72). No appeal from the Judgment was
taken. Without the Career Offender finding, Defendant's
Guideline Range would have been 188 to 235 months.