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Agtuca v. United States

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

May 14, 2018

KENNETH DUANE AGTUCA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER GRANTING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          Robert S. Lasnik United States District Judge

         In this motion under 28 U.S.C. § 2255, petitioner Kenneth Agtuca moves to vacate, set aside, or correct the life sentence he received for convictions of armed bank robbery, being a felon in possession of a firearm, and two related charges. Dkt. # 1. The Court has considered the parties' memoranda, the exhibits, and the remainder of the record. For the following reasons, the petition is GRANTED.

         I. BACKGROUND

         Mr. Agtuca's life sentence stems from four convictions related to his 1992 robbery of a South Seattle bank. A jury convicted him of armed bank robbery (in violation of 18 U.S.C. §§ 2113(a), (d)), conspiracy to commit armed bank robbery (18 U.S.C. § 371), being a felon in possession of a firearm (18 U.S.C. §§ 922(g)(1), 924(e)(1)), and use of a firearm during a crime of violence (18 U.S.C. § 924(c)(i)). Mr. Agtuca received a sentence of life imprisonment followed by a consecutive sentence of 60 months.

         Mr. Agtuca's life sentence-unusually long for his crimes-resulted from his felon-in-possession conviction combined with his extensive criminal history. Under the Armed Career Criminal Act (ACCA), a defendant convicted of being a felon in possession faces more severe punishment if he has three or more previous convictions for a “violent felony.” 18 U.S.C. § 924(e). The Act defines “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B). Subsection (i) of the definition is known as the elements clause, and the final clause of subsection (ii)-“or otherwise involves conduct that presents a serious potential risk of physical injury to another”-is known as the residual clause. Welch v. United States, 136 S.Ct. 1257, 1261 (2016).

         When Mr. Agtuca was sentenced, he had five relevant convictions under Washington law: one conviction for first-degree assault, two convictions for second-degree assault, and two convictions for robbery. The sentencing judge determined that all five qualified as violent felonies, but did not specify which ACCA subsection applied.

         Since then, the Supreme Court has interpreted the definition of “violent felony” several times and narrowed the range of crimes that qualify as ACCA predicates. See, e.g., Johnson v. United States (Johnson I), 559 U.S. 133, 140 (2010); Chambers v. United States, 555 U.S. 122, 122 (2009); Begay v. United States, 553 U.S. 137, 141 (2008). Most notably, the Supreme Court in Johnson v. United States (Johnson II), 135 S.Ct. 2551 (2015), struck down the residual clause as unconstitutionally vague, id. at 2555, which the Court later determined was a substantive decision retroactive in cases on collateral review, Welch, 136 S.Ct. at 1268.

         Mr. Agtuca filed the instant petition claiming that Johnson II undermines the legality of his life sentence because his predicate convictions no longer qualify as violent felonies.[1]

         II. DISCUSSION

         A. ...


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