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United States v. Reid

United States District Court, E.D. California

June 24, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
KEVIN C. REID, Defendant/Movant.

          FINDINGS AND RECOMMENDATIONS

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE

         Movant, a federal prisoner, brings a challenge to his sentence under 28 U.S.C. § 2255. ECF No. 43. Movant seeks relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and progeny. Id., see also ECF No. 59 (supplemental brief asserting right to relief under Sessions v. Dimaya, 138 S.Ct. 1204 (2017)). The United States opposes the motion, ECF No. 53, and movant has replied, ECF No. 54. Supplemental briefs were filed at the request of the court. ECF Nos. 56, 58.

         I. BACKGROUND

         On August 26, 1999, Mr. Reid and a co-defendant were charged by indictment with attempted Hobbs Act robbery of a Pizza Hut restaurant, in violation of 18 U.S.C. § 1951(b) (Count One); and with use of a firearm during and in relation to the attempted robbery, in violation of § 924(c)(1) (Count Two). ECF Nos. 1, 55 at 2. Mr. Reid pled guilty to the gun charge on November 17, 1999, and the attempted robbery count was dismissed at sentencing on July 27, 2000. ECF Nos. 19, 35.

         II. THE MOTION

         When the instant motion was filed, neither party had access to the 1999 indictment on the court's Electronic Filing system, and the court's paper file had been archived. Perhaps for this reason, the initial § 2255 motion asserted in error that Mr. Reid's § 924(c) conviction was predicated on an uncharged California robbery. ECF No. 43 at 3. Movant contended that Cal. Penal Code § 211 robbery cannot constitute a crime of violence for purposes of § 924(c) after Johnson, supra. Id. In opposition, the United States asserted that the predicate crime of violence was most likely Hobbs Act robbery, not California robbery, and that the holding of Johnson had no effect on the longstanding principle that Hobbs Act robbery constitutes a violent crime for purposes of § 924(c). ECF No. 53. The court retrieved the indictment from archives, determined that Count One had charged attempted Hobbs Act robbery, and ordered further briefing. ECF No. 55.

         Movant now contends that attempted Hobbs Act robbery (1) is not categorically a crime of violence, and (2) cannot be construed as a violent crime under § 924(c)'s residual clause because that clause is unconstitutional under Johnson. ECF No. 56 at 1-8. He also argues that Dimaya, supra, provides additional grounds for relief. ECF No. 59.

         III. JURISDICTION

         The district court has jurisdiction over a § 2255 motion if the movant is “in custody” at the time of filing. Maleng v. Cook, 490 U.S. 488, 491 (1989); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988). The custody requirement is met if the defendant is “subject to” supervised release. Matus-Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002) (citing Jones v. Cunningham, 371 U.S. 236, 242-43 (1963)).

         Mr. Reid was sentenced on July 25, 2000, to 44 months imprisonment followed by 36 months supervised release. ECF No. 35. On December 3, 2003, Mr. Reid was indicted in the District of Nevada for escaping from a BOP halfway house on or about October 14, 2003. ECF No. 54-2. Movant was serving the instant sentence when he escaped. The Nevada federal case ended in a guilty plea. Id. Meanwhile, Mr. Reid had been arrested and convicted on Nevada state charges; he was writted to federal court for proceedings in the escape case. Id. at 14. Present federal counsel represents that movant is serving a life sentence, with the possibility of parole, for a 2003 Nevada state conviction. ECF No. 56 at 13. The government does not dispute this representation.

         It appears from these facts that when the instant § 2255 motion was filed on June 27, 2016, Mr. Reid was in Nevada custody rather than federal custody, but had not served his full sentence in the instant case. Accordingly, he remains “subject to” additional imprisonment and supervised release in this case. This court therefore has jurisdiction to consider the motion. See Harrison v. Ollison, 519 F.3d 952, 955 n.2 (9th Cir. 2008) (finding that a defendant in state prison, with a “pending sentence of federal parole, . . . is ‘in custody' for purposes of the federal habeas provisions, § 2241(c) and § 2255”).

         IV. PERTINENT STATUTORY FRAMEWORK

         Title 18 U.S.C. § 924(c), under which Mr. Reid was charged in Count Two and to which he pled guilty, provides in pertinent part as follows:

(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such ...

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