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United States v. Simpson

United States District Court, S.D. California

November 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
Michael Tyrone Simpson Defendant.

          ORDER DENYING DEFENDANT'S § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY ECF NO. 105

          Barry Ted Moskowitz, Chief Judge

         Michael Tyrone Simpson (“Defendant”) has filed a motion to vacate, set aside, or reduce his sentence pursuant to 28 U.S.C. § 2255, relying on Johnson v. United States, 135 S.Ct. 2551 (2015). (ECF No. 105). For the reasons discussed below, the Court denies Defendant's § 2255 motion.

         I. BACKGROUND

         On April 9, 1998, Defendant was convicted on two counts: (1) armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d), and (2) use and carrying of a firearm during the commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1). (ECF Nos. 7, 57). For the first count, Defendant was sentenced as a Career Offender pursuant to U.S.S.G. §§ 4B1.1 and 4B1.2. His armed bank robbery conviction was categorized as a “crime of violence” and his two prior convictions of robbery in violation of California Penal Code § 211 and selling/furnishing marijuana in violation of California Health & Safety Code § 11360(a) were respectively categorized as “crime of violence” and “controlled substance offense” predicates. Accordingly, Defendant was sentenced to the statutory maximum of 300 months. (ECF No. 63). For the second count, Defendant's instant armed bank robbery conviction was also categorized as a “crime of violence” and he was sentenced to a mandatory 60-month consecutive term, for a total term of imprisonment of 360 months. (ECF No. 63).

         On June 26, 2015, the Supreme Court decided Johnson, in which it held that the residual clause definition of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. On October 19, 2015, the Ninth Circuit decided Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S.Ct. 31, 195 L.Ed.2d 902 (2016), expanding the holding of Johnson beyond the ACCA context so as to render void-for-vagueness the residual clause definition of “crime of violence” in 18 U.S.C. § 16(b). On March 6, 2017, the Supreme Court decided Beckles v. United States, 137 S.Ct. 886 (2017), limiting the reach of Johnson by ruling that the Sentencing Guidelines (and therefore § 4B1.2(a)'s residual clause), because of their discretionary nature, were not subject to void-for-vagueness challenges. However Beckles did not foreclose such challenges in cases where the defendant was sentenced prior to United States v. Booker, 543 U.S. 220 (2005), when the Sentencing Guidelines were mandatory (as was the case with Defendant).

         Defendant filed the instant § 2255 motion on June 1, 2016. (ECF No. 105). Defendant argues that the reasoning of Johnson applies to the residual clause definition of “crime of violence” in U.S.S.G. §§ 4B1.1 and 4B1.2 and 18 U.S.C. § 924(c)(1). Accordingly, he first moves to vacate his sentence as a career offender under U.S.S.G. §§ 4B1.1 and 4B1.2, arguing that his instant and predicate convictions[1] for 18 U.S.C. § 2113(a) and (d) and California Penal Code § 211 can no longer be considered “crimes of violence.” Second, he moves to vacate his sentence under 18 U.S.C. § 924(c)(1), similarly arguing that his armed bank robbery conviction can no longer constitute a “crime of violence.”

         II. DISCUSSION

         28 U.S.C. § 2255 provides that a prisoner in custody “claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

         A. Career Offender Designation under U.S.S.G. §§ 4B1.1 and 4B1.2

         At the time Defendant was sentenced, § 4B1.1 provided that a defendant was a career offender if he was at least 18 years of age, if the instant offense was a felony that was a “crime of violence, ” and if he had “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1 (Nov. 1, 1997). At the time, § 4B1.2(a) defined “crime of violence” as:

any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (Nov. 1, 1997). Subsection (a)(1) is generally called the “elements clause, ” the first half of subsection (a)(2) is the “enumerated offenses clause, ” and the second ...


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