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United States v. Mass

United States District Court, E.D. Michigan, Southern Division

January 31, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL MASS, JR., Defendant.

          OPINION AND ORDER DENYING MOTION TO VACATE SENTENCE [251]

          LAURIE J. MICHELSON, U.S. DISTRICT JUDGE

         In Johnson v. United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. In United States v. Pawlak, 822 F.3d 902 (6th Cir. 2016), the Sixth Circuit extended Johnson to invalidate the residual clause of the “crime of violence” definition set forth in § 4B1.2(a)(2) of the Sentencing Guidelines. That section of the Guidelines provides for an enhancement in a defendant's base offense level if the defendant is classified as a career offender. A career offender is a defendant who, among other requirements, has two prior convictions for “either a crime of violence or a controlled substance offense.” U.S.S.G. § 4B1.1(a). And the definition of “crime of violence, ” until Pawlak, included a felony offense that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2). So without the residual clause, some crimes that would have previously qualified as crimes of violence no longer do.

         In this case, Defendant Daniel Mass. was sentenced as a career offender under U.S.S.G. § 4B1.2. (R. 201, 207.) He says that one of the predicate offenses the Court used to make this determination no longer qualifies as a crime of violence and therefore asks this Court to vacate his sentence. The Court denied the Government's motion to stay these proceedings (R. 262), but will not grant Mass. the relief he seeks. Even without resort to the now-invalid residual clause, Mass. has two prior offenses that qualify as crimes of violence under § 4B1.2.

         I.

The Sentencing Guidelines provide,
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 (emphasis added). If a defendant qualifies as a career offender, the base offense level (for the offense of conviction) is increased, leading to a higher guidelines range.

         At the time of Mass's sentencing in 2003, the Guidelines defined “crime of violence” as follows:

The term “crime of violence” means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, [Force Clause] or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, [Enumerated-Felony Clause] or otherwise involves conduct that presents a serious potential risk of physical injury to another. [Residual Clause]

U.S.S.G. § 4B1.2(a) (emphasis and explanatory brackets added).[1] The emphasized language is the residual clause, which (after Johnson) the Sixth Circuit has held is “unconstitutionally vague.” United States v. Pawlak, 822 F.3d 902, 911 (6th Cir. 2016).

         At sentencing, Mass. had three prior offenses with potential to qualify as “a crime of violence or a controlled substance offense” under § 4B1.1: (1) a 1991 conviction for possession of cocaine for sale in Los Angeles, California Superior Court; (2) a 1993 conviction for assault with a dangerous weapon in Los Angeles, California Superior Court; and (3) a 2002 conviction for possession of a controlled substance while armed in Compton, California Superior Court. (R. 201, PID 136.) Mass's argument is that the only way his 1993 and 2002 convictions qualify under the career offender enhancement is through the residual clause, and given Pawlak, he no longer qualifies as a career offender. But Mass. does not put forth argument regarding his 1991 conviction. (R. 260, PID 290.) And the Government does not argue that the 2002 conviction is a predicate offense. (R. 257, PID 277-82.) Thus, if the 1993 conviction qualifies as a crime of violence through the force clause, the Court need not vacate Mass's sentence or address the Government's argument that Johnson is not retroactive to his case.

         A.

         The Court engages in a multi-step inquiry to determine whether a prior offense can be classified as a predicate under the Sentencing Guidelines. United States v. Mekediak, 510 F. App'x 348 (6th Cir. 2013) (citing United States v. Montanez, 442 F.3d 485, 489 (6th Cir. 2006)). The ultimate question in this case will be whether the defendant admitted to a crime that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” U.S.S.G. § 4B1.2(a)(1). “The prior conviction qualifies as an ACCA [or Guidelines] predicate only if the statute's elements are the same as, or narrower than” a statute containing the exact language as the use-of-force clause. Descamps v. United States, __ U.S. __, 133 S.Ct. 2276, 2281 (2013); see also United States v. White, No. 4:08-CR-103, 2016 U.S. Dist. LEXIS 93818, at *5 (N.D. Ohio July 19, 2016) (“For a conviction to fall under the use-of-force prong, the underlying statute must necessarily entail ‘the use, attempted use, or threatened use of physical force against the person of another.' So long as the statute only punishes conduct involving the use or attempted use of physical force, the statute does not need to expressly mirror the language of the use-of-force clause.”).

         The question identified above may apply to the statute as a whole (formal categorical approach), or to a specific part of the statute (modified categorical approach). Descamps, 133 S.Ct. at 2283. Whether the modified categorical approach or the formal categorical approach applies depends on whether the statute is divisible. See United States v. Woodley, No. 15-cr-20007, 2015 U.S. Dist. LEXIS 162065, at *6 (E.D. Mich. Dec. 3, 2015). Any statute with alternative phrasing could potentially be a divisible statute. The Supreme Court has directed the following “threshold inquiry” in such circumstances:

The first task for a sentencing court faced with an alternatively phrased statute is thus to determine whether its listed items are elements or means. If they are elements, the court should do what we have previously approved: review the record materials to discover which of the enumerated alternatives played a part in the defendant's prior conviction, and then compare that element (along with all others) to those of the generic crime. But if instead they are ...

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