Opinion
No. CV 16-04599 PHX SRB (CDB) No. CR 02-00750 PHX SRB
02-06-2020
Mark David Branon, Movant, v. United States of America, Respondent.
REPORT AND RECOMMENDATION
TO THE HONORABLE SUSAN R. BOLTON:
Before the Court is Movant Mark Branon's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255, at ECF No. 7-3 and ECF No. 9-1. Branon, who is currently without counsel, asserts his conviction and sentence for possession or use of a firearm with a silencer in a crime of violence (Count 8), in violation of 18 U.S.C. § 924(c)(1)(B)(ii), is unconstitutional in light of Johnson v. United States, 135 S. Ct. 2551 (2015). Respondent allows that, pursuant to the Supreme Court's decision in United States v. Davis, 139 S. Ct. 2319 (2019), Branon's conviction on Count 8 should be vacated and Branon should be resentenced.
On September 4, 2002, a second superseding indictment was filed charging Defendant with eleven felonies: one count of conspiracy to possess with the intent to distribute marijuana, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(vii) and 846 (Count 1); three counts of establishment for storing a controlled substance, in violation of 21 U.S.C. § 856(a)(2) (Counts 2, 3, and 6); one count of conspiracy to import marijuana, in violation of 21 U.S.C. §§ 952, 960(a)(1), (b)(1)(G), and 963 (Count 4); one count of continuing a criminal enterprise, in violation of 21 U.S.C. § 848 (Count 5); one count of
murder for hire, in violation of 18 U.S.C. § 1958 (Count 7); one count of possession or use of a firearm in a crime of violence with a silencer, in violation of 18 U.S.C. § 924(c)(1)(B)(ii) (Count 8); one count of possession or use of a firearm in a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) (Count 9); one count of felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Count 10); and one count of possession of a firearm with an obliterated serial number, in violation of 18 U.S.C. §§ 922(k) and 924(a)(1)(B) (Count 11). (CR-02-750-PHX-SRB, ECF No. 38.) Following a jury trial, Defendant was convicted on counts 1-5, 8, 10, and 11. (CR-02-750-PHX-SRB, ECF Nos. 100-110.)
On August 26, 2003, Defendant was sentenced to 360 months' imprisonment on Counts 1, 4, and 5 (conspiracy to possess with the intent to distribute marijuana, conspiracy to import marijuana, and continuing a criminal enterprise), 240 months' imprisonment on Count 2 & 3 (two counts of establishment for storing a controlled substance), 120 months' imprisonment on Count 10 (felon in possession of a firearm), and 60 months' imprisonment on Count 11 (possession of a firearm with an obliterated serial number), all to run concurrently; and 360 months' imprisonment on Count 8 (possession or use of a firearm in a crime of violence with a silencer, running consecutively to the other counts). (CR-02-750-PHX-SRB, ECF No. 140.) The court also ordered that upon release from imprisonment, Defendant shall be placed on supervised release for 10 years on Count 1, 5 years on Counts 4, 5, and 8, and for 3 years on Counts 2, 3, 10, and 11, to run concurrently with one another. (CR-02-750-PHX-SRB, ECF No. 140.)
On August 22, 2005, the Ninth Circuit affirmed Defendant's convictions and granted a limited review under United States v. Ameline, 409 F.3d 1083 (9th Cir. 2005). (CR-02-750-PHX-SRB, ECF No. 172.)
On August 3, 2006, Defendant was re-sentenced pursuant to the remand from the Ninth Circuit and received the same sentence that was imposed in 2003. . . .
On April 21, 2008, the Ninth Circuit granted the government's motion for summary affirmance, and affirmed Defendant's convictions and sentence on direct appeal. United States v. Branon, 474 F. App'x 587 (9th Cir. 2008).
On June 27, 2016, Defendant filed a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by a person in federal custody. (CR-02-750-PHX-SRB, ECF No. 274.) On July 15, 2016, Defendant filed a motion for leave to file a second and successive motion 28 U.S.C. § 2255. (ECF No. 7.) The Ninth Circuit granted his request. (ECF No. 7.) In his original and subsequent § 2255 motions, Defendant argues that his § 924(c) conviction is no longer valid following the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) because the residual clause of § 924(c) is unconstitutionally vague and cannot be used to support his
§ 924(c) conviction and sentence. (CR-02-750-PHX-SRB, ECF No. 274; ECF No. 7.)(ECF No. 42 at 2-3).
On March 17, 2017, the Court ordered a response to Branon's § 2255 motion. (ECF No. 9). The matter was stayed on June 13, 2017, pending the United States Supreme Court's decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and the Ninth Circuit Court of Appeals' decision in United States v. Begay, 934 F.3d 1033 (9th Cir. 2019). (ECF No. 23). The Supreme Court issued its decision in Dimaya on April 17, 2018. See 138 S. Ct. 1204. On August 19, 2019, the Ninth Circuit issued its decision in Begay, reiterating the Supreme Court's holding in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. See 934 F.3d at 1038. On August 23, 2019, Respondent was ordered to file a response to Branon's § 2255 motion no later than October 17, 2019. (ECF No. 23).
The Government filed its Response to the § 2255 motion on October 17, 2019, allowing the Court should grant Branon's motion and "vacate his § 924(c) conviction (Count 8), and resentence [him] on Counts 1, 5, 10, and 11, following an amended guidelines calculation." (ECF No. 42 at 1). Respondent avers:
As explained below, because conspiracy can no longer be a crime of violence under § 924(c)(3)(B) post-Davis and cannot serve as a predicate offense for Defendant's § 924(c) conviction, this Court should grant Defendant's § 2255 motion, vacate his § 924(c) conviction, and resentence Defendant on Count 1 (conspiracy to possess with the intent to distribute marijuana), Count 2, and 3 (establishment for storing a controlled substance), Count 4 (conspiracy to import marijuana), Count 5 (conspiracy to import marijuana), Count 10 (felon in possession of a firearm), and Count 11 (possession of a firearm with an obliterated serial number).(ECF No. 42 at 4).
The United States Solicitor General has "conceded" that Davis announced a substantive rule of constitutional law applicable on collateral review. See Brief for the United States, United States v. Davis, 2019 WL 629976, at *52 (Feb. 12, 2019). The Circuit Courts of Appeal that have reached this issue have concluded Davis announced a substantive rule of constitutional law retroactively applicable on collateral review. See United States v. Reece, 938 F.3d 630, 635 (5th Cir. 2019); United States v. Bowen, 936 F.3d 1091, 1097 (10th Cir. 2019); In re Hammoud, 931 F.3d 1032, 1038 (11th Cir. 2019).
Accordingly,
IT IS RECOMMENDED that Branon's motion to vacate, set aside, or correct sentence at ECF No. 7-3 and ECF No. 9-1, be granted.
IT IS FURTHER RECOMMENDED that the Court vacate Branon's § 924(c) conviction (Count 8), and resentence Branon on Count 1, Counts 2 and 3, Count 5, Count 10, and Count 11; order a presentence report be prepared; and resentence Branon accordingly.
This Report and Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(b) and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed. R. Civ. P. 72.
Dated this 6th day of February, 2020.
/s/_________
Camille D. Bibles
United States Magistrate Judge