United States v. Suesue

          FINAL REPORT AND RECOMMENDATION ^[1] REGARDING A SUCCESSIVE 28 U.S.C. § 2255 MOTION TO VACATE CONVICTION [DOCKET NO. 594]

          KEVIN F. MCCOY, UNITED STATES MAGISTRATE JUDGE.

         I. MOTION PRESENTED

         Before the Court is Dennis Suesue's Circuit Court-authorized^[2] successive 28 U.S.C. § 2255 motion to vacate and set aside his 18 U.S.C. § 924(c) firearm brandishing conviction.^[3] The government opposed.^[4] Suesue provided a supplemental merits brief, ^[5] to which the government responded.^[6] Suesue filed a reply merits brief^[7] and notices of supplemental authority.^[8] No. party asked for oral argument and the Court concludes that additional argument would not be helpful. Upon careful consideration of the claims advanced by Suesue, this report recommends that the District Court, upon independent review, deny Suesue's petition to vacate his 18 U.S.C. § 924(c)(1) firearm brandishing conviction.

         II. BACKGROUND

         A. The Indictment, Trial, Sentence, and Judgment

         In 2008, a grand jury returned a multi-count indictment against Suesue stemming from an assault on a federal agent in March, 2007.^[9] The indictment charged Suesue in Count 1 with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), in Count 2 with assaulting a federal agent in violation of 18 U.S.C. §§ 111(a)(1) and (b), in Count 3 with possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), in Count 4 with armed robbery of federal property in violation of 18 U.S.C. §2114(a), in Count 5 with using a firearm in furtherance of a crime of violence by brandishing a firearm during the assault on a federal agent charged in Count 2 in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(A)(ii), and in Counts 6 and 7 with threatening to assault or murder a family member of a federal law enforcement officer, or a federal law enforcement officer in violation of 18 U.S.C. §§ 115(a)(1)(A), (a)(1)(B), and (b)(1)(4).^[10]

         The trial jury convicted Suesue on all counts.^[11] Suesue's sentencing guideline range for Counts 1-4, 6, and 7 combined was 262 to 327 months.^[12] Suesue's conviction for Count 5, the § 924 (c) violation, resulted in an enhanced sentencing guideline range of 360 months to life.^[13] The Court sentenced Suesue to a composite sentence of 360 months: 120 months on Count 1, 240 months on Counts 2 and 3, 276 months on Count 4, and 72 months on Counts 6 and 7, all to be served concurrently; plus 84 months for Count 5, to be served consecutively to the other counts.^[14]

         B. Direct Appeal

         Suesue appealed his sentence, arguing that he was not a career offender.^[15] The Ninth Circuit affirmed.^[16] Suesue filed a petition for writ of certiorari to the U.S. Supreme Court, ^[17]which the Supreme Court denied, ^[18] making his conviction final on May 28, 2010.^[19]

         C. Motion Practice Related to Suesue's Firearm Brandishing Conviction (Count 5) and Sentence

         Suesue filed a pro se § 2255 motion to vacate sentence on April 18, 2016.^[20] In 2017, through counsel, Suesue sought leave from the Ninth Circuit to file a successive 28 U.S.C. § 2255 motion to vacate only his §§ 924(c)(1)(A) and 924(c)(1)(A)(ii) firearm brandishing conviction (Count 5).^[21] Initially, he also sought to challenge his designation as a career offender and the corresponding Guidelines enhancements;^[22] he abandoned the career offender challenge after the Supreme Court decided Beckles v. United States.^[23] The appellate court authorized the filing, ^[24] which this Court in turn treated as Suesue's second or successive § 2255 motion to vacate his conviction.^[25]

         1. Suesue's motion to vacate

         Suesue's motion to vacate his § 924(c)(1) conviction is dependent on three concepts: (1) that assault on a federal officer does not qualify as a “crime of violence” without relying on the “risk-of-force” clause^[26] of 18 U.S.C. § 924(c)(3)(B);^[27] (2) that the Supreme Court in Johnson v. United States (“Johnson II”)^[28] recently struck down a similarly worded “crime of violence” definition in the Armed Career Criminal Act's (ACCA) risk-of-force clause;^[29] and (3) the reasoning in Johnson II requires the conclusion that the risk-of-force clause in § 924(c)(3)(B) is unconstitutionally vague.^[30] Suesue asks that his §§ 924(c)(1)(A) and 924(c)(1)(A)(ii) firearm brandishing conviction be vacated because the alleged predicate “crime of violence, ” assault on a federal officer, no longer qualifies after Johnson II.^[31]

         In particular, he argues that the offense he was convicted of, assault on a federal officer under 18 U.S.C. §§ 111(a) and (b), is not a crime of violence under § 924(c)(3). Section 924(c)(3) provides two definitions for a crime of violence: a felony offense that involves either the use of force, or a substantial risk of force. Suesue says that assault on a federal officer does not have “as an element the use, attempted use, or threatened use of physical force against the person or property of another” required under § 924(c)(3)(A) (the “force clause”).^[32] He also asserts that § 924(c)(3)(B), the “risk-of-force clause, ” is unconstitutionally vague after Johnson II in violation of the Fifth Amendment Due Process clause.^[33]

         2. The government's opposition

         The government opposes Suesue's collateral attack for four reasons.^[34] First, the government asserts that Suesue's § 924(c)(3)(B) claim is procedurally defaulted because he failed to raise his vagueness and due process challenges before the trial court or on direct appeal, and he has not shown cause and actual prejudice.^[35] Second, the government says that Suesue's motion is time-barred by the one-year limitation contained in § 2255(f).^[36] Third, the government contends that assault on a federal officer categorically qualifies as a crime of violence under the force clause.^[37] Fourth, the government disagrees with Suesue's claim that the risk-of-force clause in § 924(c)(3)(B) is unconstitutionally vague.^[38] Moreover, between the time when Suesue filed his motion to vacate and when the government submitted its response in opposition, the Supreme Court decided Beckles.^[39] The government accurately indicated that Beckles foreclosed Suesue's unconstitutional sentencing guideline enhancement argument.^[40]

         Both parties submitted supplemental merits briefing supporting the arguments made in their initial pleadings.^[41] Additionally, Suesue filed two notices of supplemental authority to further support his merit briefing.^[42]

         III. ISSUE PRESENTED

         Is Assault on a Federal Officer involving the threatened use of a deadly or dangerous weapon under 18 U.S.C. 111(a) and (b) a “crime of violence” within the meaning of 18 U.S.C. § 924(c)(3) when it is the predicate crime of violence for an alleged § 924(c)(1)(A) firearm brandishing violation?

         IV. ANALYSIS

         A. Introduction

         Upon careful evaluation of the claims advanced by Suesue, this Court recommends that the District Court deny his § 2255 motion to vacate the firearm brandishing conviction. Suesue's motion must be denied because: (1) his application is procedurally defaulted, and (2) his request is time-barred. More importantly, Suesue cannot prevail because assault on a federal officer involving a deadly or dangerous weapon, 18 U.S.C. §§ 111(a) and (b), is a crime of violence under the force clause. Therefore, it categorically satisfies the predicate “crime of violence” requirement for the firearm brandishing conviction. Because assault on a federal officer involving a deadly or dangerous weapon so clearly qualifies as a crime of violence under the force clause, this Court does not reach Suesue's risk-of-force vagueness claim.

         B. The Government's Procedural Default and Time-Bar Arguments are Persuasive

         The government prevails on the procedural default and time-bar arguments, primarily because assault on a federal officer involving a deadly or dangerous weapon categorically matches the force clause.

         1. Suesue's procedural default is not excused

         Suesue admits the procedural default because he failed to raise the due process challenge in the trial court and, thereafter, on direct appeal.^[43] However, he seeks to excuse the default by claiming actual innocence and by alleging cause for the default and actual prejudice.^[44]Suesue's arguments are not persuasive.

         (a) Actual innocence

         Actual innocence means factual innocence.^[45] Suesue's actual innocence claim centers on the contention that his conviction for assault on a federal officer does not qualify as a crime of violence and that his conduct could not, therefore, violate the firearm brandishing statute-which requires the conduct to be associated with a crime of violence.^[46] But, as demonstrated below, assault on a federal officer categorically qualifies as a crime of violence under the force clause. For this reason, Suesue has failed to demonstrate actual innocence, and cannot thereby excuse the procedural default.

         (b) Cause and actual prejudice

         Suesue next contends that the due process challenge to § 924(c)(3) was not reasonably available before his conviction became final.^[47] He reasons that when Johnson II declared the ACCA risk-of-force clause unconstitutionally vague, it expressly overruled James v. United States and Sykes v. United States.^[48] James^[49] and Sykes^[50] each opined that the ACCA risk-of-force clause was not unconstitutionally vague.^[51] Suesue then claims actual prejudice by arguing his conduct did not violate the firearm brandishing statute because assault on a federal officer does not qualify as a crime of violence under the force clause or the risk-of-force clause, rendering his § 924(c) conviction unconstitutional.

         (i) Not reasonably available

         A procedural default can be excused when “the legal basis for [the] claim was not reasonably available to counsel” before trial or when the guilty plea was entered.^[52] But the claim must be “so novel that its legal basis is not reasonably available to counsel” before it will excuse a procedural default.^[53] Adverse precedent alone does not make a claim unavailable. This is so because “futility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.”^[54]

         Suesue urges this Court to apply the analysis in Reed v. Ross^[55] to find that the Supreme Court decision in Johnson II fell into Reed's first two categories, namely that it: “(1) explicitly overrules one of the Court's precedents; or (2) overturns a longstanding and widespread practice to which the Court has not spoken, ‘but which a near-unanimous body of lower court authority has expressly approved.'”^[56]

         Suesue's argument here^[57] is not persuasive. Suesue asserted on direct appeal that his previous military conviction in 1998 for burglary did not qualify as a predicate crime of violence for career offender purposes.^[58] As the government notes, if Suesue could argue that a burglary conviction was not categorically a crime of violence under Taylor, ^[59] he certainly could have asserted that assaulting a federal officer was not categorically a crime of violence under § 924(c)(3).^[60] Before Johnson II, courts routinely resolved challenges to the meaning and applicability of a “crime of violence” in multiple contexts.^[61] Nothing about Suesue's current due process challenge can be fairly considered to be so novel that its legal basis was not reasonably available to his counsel before his sentence became final. Suesue's procedural default cannot be excused because his due process challenge as to the force clause was reasonably available in 2008.

         (ii) Actual prejudice

         But, even if that were not so, Suesue has failed to demonstrate actual prejudice. His actual prejudice argument centers on Johnson II.^[62] Johnson II holds that the similarly (but not identically) worded risk-of-force definition in the ACCA^[63] “denies fair notice to defendants and invites arbitrary enforcement by judges” when used to increase the applicable penalties from a maximum of ten years to a statutory mandatory minimum sentence of fifteen years up to life.^[64]Suesue contends that the consecutive 84-month § 924(c) sentence constitutes actual prejudice.

         But, once again, as demonstrated below, persuasive authority convincingly establishes that assault on a federal officer categorically qualifies as a crime of violence under the force clause and no analysis under the risk-of-force clause is required. Thus, Suesue's procedural default cannot be excused because he has not suffered actual prejudice.

         2. Suesue's collateral attack is time-barred

         Title 28 United States Code section 2255(f) establishes a one-year period of limitation on motions to vacate a conviction and sentence. Suesue's conviction became final on May 28, 2010, ^[65] and the current collateral attack comes nearly six years later. Relevant to the present challenge, § 2255(f)(3) allows for a post-conviction relief application one year from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.”^[66]

         Suesue's risk-of-force challenge centers, by analogy, on (1) Johnson II's holding that the ACCA's risk-of-force clause violates the Fifth Amendment as unconstitutionally vague when used to elevate statutory maximum sentence from ten years to a statutory mandatory minimum sentence of not less than fifteen years and up to life, and (2) the Ninth Circuit's holding in Dimaya v. Lynch^[67] that the risk-of-force clause found in 18 U.S.C. § 16(b) is unconstitutionally vague when applied in an immigration removal context. Johnson II applies retroactively to ACCA cases on collateral review.^[68] Suesue's risk-of-force clause challenge was filed within one year of that holding. Although the Supreme Court affirmed Dimaya, ^[69] there is, as yet, no comparable Supreme Court collateral review holding in Dimaya. Moreover, Suesue cites no Supreme Court authority, and this Court can find none, which holds that Suesue's force clause due process challenge has been retroactively approved for cases on collateral review.

         For all these reasons, Suesue's current collateral attack is time-barred under § 2255(f).

         C. Assault on a Federal Officer Categorically Qualifies as a Crime of Violence Under § 924(c)(3)

         Even if this Court were to find that Suesue's motion could proceed notwithstanding his procedural default and failure to meet the timeliness requirement of § 2255(f), Suesue is not entitled to relief on the merits. This is so because assault on a federal officer involving the threatened use of force with a deadly or dangerous weapon is a crime of violence under the force clause of § 924(c)(3).

         Title 18 United States Code section 924(c)(1)(A) outlaws using a firearm during and in relation to a crime of violence. It provides in pertinent part:

(c)(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 crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-

(i) be sentenced to a term of imprisonment of not less than 5 years;

(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.^[70]

         The definition of “crime of violence” in 18 U.S.C. § 924(c) is:

(3) For purposes of this subsection the term “crime of violence” means an offense that is a felony and-

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another [“Force Clause”], or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense [“Risk-of-force Clause”].

         Suesue was convicted of charges including assault on a federal officer in violation of 18 U.S.C. §§ 111(a) and (b).^[71] Section 111 provides:

§ 111. Assaulting, resisting, or impeding certain officers or employees

(a) In general.-Whoever-

(1) forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title while engaged in or on account of the performance of official duties; or

(2) forcibly assaults or intimidates any person who formerly served as a person designated in section 1114 on account of the performance of official duties during such person's term of service, shall, where the acts in violation of this section constitute only simple assault, be fined under this title or imprisoned not more than one year, or both, and where such acts involve physical contact with the victim of that assault or the intent to commit another felony, be fined under this title or imprisoned not more than 8 years, or both.

(b) Enhanced penalty.-Whoever, in the commission of any acts described in subsection (a), uses a deadly or dangerous weapon (including a weapon intended to cause death or danger but that fails to do so by reason of a defective component) or inflicts bodily injury, shall be fined under this title or imprisoned not more than 20 years, or both.

         1. Suesue's ...