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Bailey v. United States

United States District Court, S.D. West Virginia, Charleston

August 28, 2019



          John T. Copenhaver, Jr., Senior United States District Judge

         Pending 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. Capece.

         This 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[1] filed objections on December 6, 2018. The movant responded on December 12, 2018, to which the United States replied on the same day.

         Upon an 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. 636(b)(1)).

         I. Factual and Procedural Background

         On May 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.

         The 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).[2] Instructions Transcript, ECF # 254 Ex. A at 889. The court further instructed that “‘[c]rime of violence' includes kidnaping and aggravated assault.” Id.

         On 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.

         Following the Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551 (2015)[3], 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.

         II. Legal Background

         As 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).

         This 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 problematic:

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).

         After 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.[4] 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).

         To 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 ...

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