United States District Court, S.D. West Virginia, Charleston
CHRISTOPHER J. BAILEY, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., Senior United States District Judge
is the movant's Motion to Vacate, Set Aside or Correct
Sentence Under 28 U.S.C. § 2255, filed on June 13, 2016,
by his counsel, then-Federal Public Defender Christian M.
action was previously referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to
the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28
U.S.C. § 636(b)(1)(B). On November 21, 2018, the
magistrate judge entered his PF&R recommending that the
motion be granted, and the movant's judgment be set
aside. The United States timely filed objections on December 6,
2018. The movant responded on December 12, 2018, to which the
United States replied on the same day.
objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a
district court to ‘make a de novo determination of
those portions of the [magistrate judge's]
report or specified proposed findings or recommendations to
which objection is made.'” Diamond v. Colonial
Life & Accident Ins. Co., 416 F.3d 310, 315 (4th
Cir. 2005) (emphasis in original) (quoting 28 U.S.C.
Factual and Procedural Background
23, 1995, a jury convicted the movant of one count of
kidnapping, in violation of 18 U.S.C. § 1201(a)(1), and
one count of interstate domestic violence, in violation of 18
U.S.C. § 2261(a)(2). At the time, interstate domestic
violence occurred when a person “cause[d] a spouse . .
. to cross a State line . . . by force, coercion, duress, or
fraud and, in the course or as a result of that conduct,
intentionally commit[ted] a crime of violence and thereby
cause[d] bodily injury to the person's spouse[.]”
18 U.S.C. § 2261.
district court had instructed the jury that “crime of
violence” meant “an offense that is a felony and
has as one of its essential elements the use, attempted use,
or threatened use of physical force against the person or
property of another or an offense that by its very nature
involves a substantial risk that such physical force may be
used in committing the offense[, ]” matching the
“crime of violence” definition found in 18 U.S.C.
§ 16 (a) and (b). Instructions Transcript, ECF # 254 Ex. A
at 889. The court further instructed that
“‘[c]rime of violence' includes kidnaping and
aggravated assault.” Id.
September 1, 1995, the movant was sentenced to life in prison
for the kidnapping count and twenty years in prison for the
interstate domestic violence count, to be served
concurrently. When imposing the life sentence on the
kidnapping count, the court departed upward from the
then-mandatory guideline range of 121-151 months, departing
pursuant to section 5K2.2 of the United States Sentencing
Guidelines. The conviction and sentence were affirmed on
appeal. United States v. Bailey, 112 F.3d 758, 763
(4th Cir. 1997). The movant previously filed two motions
under § 2255, in 1998 and 2013, each of which were
denied. ECF # 180 and # 229.
the Supreme Court's decision in United States v.
Johnson, 135 S.Ct. 2551 (2015), in which the Court found
the residual clause of the definition of “crime of
violence” in the Armed Career Criminal Act 18 U.S.C.
§ 924(e)(2)(B), (“ACCA”), to be
unconstitutionally vague, the movant sought and received
authorization from the Fourth Circuit to file the instant
§ 2255 motion. ECF # 226. The movant claims that
pursuant to Johnson, and the more recent decision of
Sessions v. Dimaya, 138 S.Ct. 1204 (2018), his
conviction for interstate domestic violence violated due
process because the “crime of violence”
definition given to the jury was unconstitutionally vague.
The magistrate judge agreed, and recommended in his PF&R
that the court find: (1) the new substantive rule in
Johnson, as extended in Dimaya, renders the
residual clause of 18 U.S.C. § 16(b) void for vagueness
in this context; (2) movant's § 2255 motion is
reviewable by this court to determine whether movant's
interstate domestic violence conviction may stand based on
the force clause of 18 U.S.C. § 16(a); (3) under the
categorical approach, federal kidnapping does not constitute
a crime of violence to satisfy that element of interstate
domestic violence; and (4) movant's conviction for
interstate domestic violence cannot stand, entitling him to
relief under § 2255.
aptly stated by the Sixth Circuit, “[t]his area of
federal sentencing law is complicated. Members of the Supreme
Court have described aspects of it as a ‘time-consuming
legal tangle,' Mathis v. United States, __ U.S.
__, 136 S.Ct. 2243, 2264, 195 L.Ed.2d 604 (2016) (Breyer, J.,
dissenting), and as a ‘mess,' id. at 2269
(Alito, J., dissenting).” United States v.
Burris, 912 F.3d 386, 391 (6th Cir. 2019).
entanglement began when the Supreme Court in Johnson
held unconstitutionally vague the residual clause of the
ACCA, which included as a crime of violence “any crime
punishable by imprisonment for a term exceeding one year that
. . . otherwise involves conduct that presents a serious
potential risk of physical injury to another[.]” 18
U.S.C. § 924(e)(2)(B); Johnson, 135 S.Ct. 2551.
The Supreme Court in Dimaya then expanded
Johnson and found the residual clause of 18 U.S.C.
§ 16(b) also unconstitutionally vague: “just like
ACCA's residual clause, § 16(b) ‘produces more
unpredictability and arbitrariness than the Due Process
Clause tolerates.'” Dimaya, 138 S.Ct. at
1223 (quoting Johnson, 135 S.Ct. at 2558).
Specifically, the Court found unpredictability and
arbitrariness in the application of “a distinctive form
of . . . the categorical approach” to § 16(b).
Id. at 1211 (citing Leocal v. Ashcroft, 543
U.S. 1, 7 (2004)). “The question” in that
approach, the Court explained, “is not whether
‘the particular facts' underlying a conviction
posed the substantial risk that § 16(b) demands. Neither
is the question whether the statutory elements of a crime
require (or entail) the creation of such a risk in each case
that the crime covers. The § 16(b) inquiry instead turns
on the ‘nature of the offense' generally speaking.
More precisely, § 16(b) requires a court to ask whether
‘the ordinary case' of an offense poses the
requisite risk.” Id. (citations and footnote
omitted). It is this abstract standard that the Court found
In Johnson's words, “we do not
doubt” the constitutionality of applying §
16(b)'s “substantial risk [standard] to real-world
conduct.” The difficulty comes, in § 16's
residual clause just as in ACCA's, from applying such a
standard to “a judge-imagined abstraction” --
i.e., “an idealized ordinary case of the
crime.” It is then that the standard ceases to work in
a way consistent with due process.
Id. at 1215-16 (quoting Johnson, 135 S.Ct.
at 2561) (citations omitted).
Dimaya, the Fourth Circuit, and other circuits
alike, addressed a statute with a definition of “crime
of violence” materially identical to § 16 -- 18
U.S.C. § 924(c)(1), which makes it a crime to use a
firearm in the commission of a crime of violence -- and found
the residual clause of its definition, § 924(c)(3)(B),
unconstitutionally vague as well. See United States v.
Simms, 914 F.3d 229 (4th Cir. 2019); and see
also, United States v. Davis, 903 F.3d 483, 486
(5th Cir. 2018), cert. granted, 139 S.Ct. 782, 202
L.Ed.2d 511 (2019); United States v. Salas, 889 F.3d
681, 684-86 (10th Cir. 2018), petition for cert. filed, No.
18-428 (U.S. Oct. 3, 2018); United States v. Eshetu,
898 F.3d 36, 37 (D.C. Cir. 2018) (per curiam), petition for
reh'g en banc filed, No. 15-3020 (Aug. 31, 2018). Other
circuits, however, addressed the same issue and upheld the
constitutionality of § 924(c)(3)(B). See United
States v. Barrett, 903 F.3d 166 (2d Cir. 2018),
United States v. Douglas, 907 F.3d 1 (1st Cir.
2018), United States v. Robinson, 844 F.3d 137, 141
(3d Cir. 2016), and Ovalles v. United States, 905
F.3d 1231, 1250 (11th Cir. 2018).
resolve the deep circuit split, the United States Supreme
Court granted certiorari on the Fifth Circuit's ruling,
Davis, 903 F.3d 483, and, agreeing with the Fifth
Circuit, held that § 924(c)(3)(B) requires the
categorical approach and is therefore unconstitutionally
vague. United States v. Davis, 139 S.Ct. 2319, 2336
(2019). Accordingly, the law is now well-settled, and, as the
Fourth Circuit has ...