United States District Court, D. Alaska
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 ...