Opinion
Cause No. CR 06-026-BLG-SPW Cause No. CV 16-100-BLG-SPW
11-28-2017
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. ROLANDO PEREZ, Defendant/Movant.
ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY
This matter comes before the Court on Defendant/Movant Perez's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Perez seeks relief under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015), which was made retroactive to final judgments by Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257 (2016).
I. Procedural Background
On February 16, 2006, Perez was indicted on one count of Hobbs Act robbery, a violation of 18 U.S.C. § 1951 (Count 1); one count of using or carrying a firearm during and in relation to the crime alleged in Count 1, a violation of 18 U.S.C. § 924(c) (Count 2); and one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count 3). See Indictment (Doc. 1) at 1-3.
Perez agreed to plead guilty to Counts 1 and 2. The plea agreement recited the following elements:
• Count I —Knowingly Interfere with Int. Commerce By RobberyPlea Agreement (Doc. 25) at 4-5 ¶ 8.
First, that defendant induced persons at Gold Dust Casino to part with property;
Second, that defendant did so knowingly and deliberately by robbery; and
Third, that in doing so, interstate commerce was obstructed, delayed or otherwise affected.
• Count II —Use of Firearm During a Crime of Violence
First, the defendant committed the crime of interference with commerce by threats or violence as charged in Count I of the indictment;
Second, the defendant knowingly used a firearm; and
Third, the defendant knowingly used a firearm during and in relation to the crime.
The Offer of Proof (Doc. 29) listed the elements differently. Perez did not sign the offer of proof.
In exchange for Perez's guilty plea to Counts 1 and 2, the United States agreed to dismiss Count 3. Id. at 2 ¶ 5. Perez pled guilty. See Minutes (Doc. 33).
Perez's initial sentence of 324 months was vacated on appeal. On October 18, 2007, Perez was sentenced to serve 63 months on Count 1 and 84 months on Count 2, consecutive, for a total prison term of 147 months. See Minutes (Doc. 59); Am. Judgment (Doc. 60) at 2.
Perez did not take a second appeal. His conviction became final on November 1, 2007. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).
Perez now seeks relief under the United States Supreme Court's recent decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015). See also Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257, 1265 (2016) (holding that Johnson applies to cases already final when it was issued).
II. Legal Background
In Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015) ("Johnson" or "Johnson II"), the Supreme Court considered once again the meaning of a provision in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The ACCA imposes a harsher sentence on a person convicted of a firearms offense if the person has three prior convictions for a violent felony or controlled substance offense. The Act defines a "violent felony" as a felony that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]18 U.S.C. § 924(e)(2)(B). Johnson discussed only the italicized clause, commonly called the "residual" clause.
The Supreme Court found the residual clause so vague that it deprived defendants of fair notice of the consequences of their decisions and so loose that it invited arbitrary enforcement. Therefore, the decision held, federal sentencing courts may no longer enhance a defendant's sentence based on a prior conviction when that conviction qualifies as a "violent felony" only under the residual clause. See Johnson, 135 U.S. at 2555-60, 2563.
Johnson did not address either subsection (i) or the first line of subsection (ii) in § 924(e)(2)(B). Those provisions remain valid.
Perez challenges his conviction not under the ACCA but under 18 U.S.C. § 924(c)(1)(A) and (iii) for using or carrying and discharging a firearm during and in relation to a "crime of violence." The definition of a "crime of violence" in § 924(c)(3) is not identical to the definition of a "violent felony" in § 924(e)(2)(B), but it is similar:
(3) For purposes of this subsection [§ 924(c)] 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, or18 U.S.C. § 924(c)(3).
(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.
The Court will assume, for the sake of argument, that the residual clause in § 924(c)(3)( B ) is unconstitutionally vague for the reasons explained in Johnson. See Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015) (holding the residual clause of 18 U.S.C. § 16(b), which is virtually identical to § 924(c)(3)(B), unconstitutionally vague under Johnson), cert. granted, No. 15-1498 (U.S. Sept. 29, 2016).
On June 26, 2017, the Supreme Court adjourned without deciding the case. It was reargued on October 2, 2017.
But, even so, Perez's conviction and sentence under § 924(c) would still be valid if the "crime of violence" he committed "ha[d] as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)( A ).
For the following reasons, Perez's conviction and sentence remain valid after Johnson.
III. Analysis
A. Perez's Predicate Crime Was Hobbs Act Robbery
In the plea agreement, Perez acknowledged that he "did unlawfully take and obtain personal property" from the Gold Dust casino "against the will of its agents and employees by means of actual and threatened force, violence, and fear of injury, immediate and future, to their persons and property." Plea Agreement (Doc. 25) at 3 ¶ 6(a); see also 18 U.S.C. § 1951(b)(1) (defining robbery).
The predicate crime for Perez's conviction under § 924(c), therefore, was robbery as defined by the Hobbs Act. To prevail on his § 2255 motion, Perez must show that robbery under the Hobbs Act is not a "crime of violence."
B. Hobbs Act Robbery is a Crime of Violence
The parties agree that United States v. Mendez, 992 F.2d 1488 (9th Cir. 1993), is a relevant precedent. They disagree about what it means. Mendez held that conspiracy to commit a Hobbs Act robbery is a "crime of violence" under § 924(c)(3)(B). See Mendez, 992 F.2d at 1491-92. After Johnson, that conclusion is at least questionable.
Although Perez asserts that "the analysis employed by the court in Mendez is no longer valid" after Johnson, see Mot. § 2255 (Doc. 63) at 13 n.5, he relies on Mendez to suggest the Hobbs Act is indivisible—that is, that it defines one crime with one set of elements and various means of meeting those elements. Perez quotes Mendez's observation that the Hobbs Act "defines a crime using several permutations, any one of which constitutes the same offense." Mendez, 992 F.2d at 1490, quoted in Mot. § 2255 at 13. And, to show that a defendant can be convicted under the Hobbs Act even where there is no use or attempted or threatened use of physical force, he cites Hobbs Act extortion cases. See Mot. § 2255 at 15 (citing United States v. Villalobos, 748 F.3d 953 (9th Cir. 2014); United States v. Sturm, 870 F.2d 769 (1st Cir. 1989)). These cases are relevant to Perez's case only if Mendez dictates that literally all Hobbs Act "permutations" constitute "the same offense," so that robbery and extortion are two different means of committing the element of obtaining another's property by unlawful force or threats.
As explained below, Mendez has been treated and should be read to say that the Hobbs Act is divisible, and robbery and extortion are two different elements of a Hobbs Act violation or two different crimes under the Hobbs Act.
But before considering the status of conspiracy to commit a Hobbs Act robbery, the Mendez court stated that a Hobbs Act robbery is a crime of violence under § 924(c)(3)( A ). It said:
Robbery indisputably qualifies as a crime of violence. See 18 U.S.C. § 1951(b)(1) (containing element of "actual or threatened force, or violence").Mendez, 992 F.2d at 1491.
The parenthetical phrase describing robbery as containing an "element" of "actual or threatened force, or violence" refers to § 924(c)(3)(A)'s requirement that a crime of violence have, "as an element, the use, attempted use, or threatened use of physical force." Mendez was not a Hobbs Act robbery case, but its characterization of Hobbs Act robbery as a crime of violence under § 924(c)(3)(A) has been treated as binding precedent in the Ninth Circuit. See, e.g., United States v. Howard, 650 Fed. Appx. 466, 468 (9th Cir. 2016); United States v. Allen, 425 F.3d 1231, 1234 n.3 (9th Cir. 2005); United States v. Shivers, 172 F.3d 60, 1999 WL 77960 (9th Cir. Feb. 16, 1999) (unpublished mem. disp.).
A panel of the Ninth Circuit criticized Mendez because it announced the rule "without any analysis of the elements of robbery as defined in the Hobbs Act." United States v. Chandler, 743 F.3d 648, 658 (9th Cir. 2014), vacated, ___ U.S. ___, 135 S. Ct. 2926 (2015) (vacating and remanding in light of Johnson). Mendez might be "illogical" or "questionable." Chandler, 743 F.3d at 658. But, even if it is, that does not mean this Court can ignore it.
Under the Ninth Circuit's ruling in Mendez, a Hobbs Act robbery is a crime of violence under the force clause, § 924(c)(3)(A). Johnson has no bearing on § 924(c)(3)(A). If Mendez is still good law, it defeats Perez's § 2255 motion.
C. As to Robbery, Mendez Remains the Law in the Ninth Circuit
Perez's conviction under § 924(c) is not subject to challenge if the portion of Mendez holding a Hobbs Act robbery to be a crime of violence under § 924(c)(3)(A) is still the law of the Ninth Circuit. Generally, a published decision of the Ninth Circuit Court of Appeals is binding authority that "must be followed unless and until overruled by a body competent to do so." Hart v. Massanari, 266 F.3d 1155, 1170 (9th Cir. 2001). Neither the Ninth Circuit nor the Supreme Court has overruled any part of Mendez.
But a published decision loses its precedential force when subsequent binding precedent has "undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable." Gonzalez v. Arizona, 677 F.3d 383, 389 n.4 (9th Cir. 2012) (en banc) (quoting Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc); Hart, 266 F.3d at 1170; Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (en banc), overruled in part by Gonzalez, 677 F.3d at 389 n.4). In that case, district courts must instead "consider themselves bound by the intervening higher authority and reject the prior opinion . . . as having been effectively overruled." Gonzalez, 677 F.3d at 389 n.4.
Because Mendez has not been overruled, the question is whether it is "clearly irreconcilable" with any of the more recent decisions that Perez invokes: Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016); Descamps v. United States, ___ U.S. ___, 133 S. Ct. 2276 (2013); Johnson v. United States, 559 U.S. 133 (2010) ("Johnson I"); Leocal v. Ashcroft, 543 U.S. 1 (2003); and the various circuit decisions applying these cases. See generally Mot. § 2255 at 10-18.
1. Mendez Can Be Reconciled With Mathis and Descamps
Mendez was decided many years before the Supreme Court clarified, in Descamps and again in Mathis, that "the first task for a sentencing court faced with an alternatively phrased statute is . . . to determine whether its listed items are elements or means." Mathis, 136 S. Ct. at 2256. The distinction between elements and means is important because it indicates whether a particular statute indivisibly defines a single crime, merely citing different means of proving its elements, or, instead, whether a statute defines more than one crime, each with its own discrete set of elements. Whether a statute defines one crime that can be committed by various means or two or more crimes with different elements matters a lot in categorical analysis; every means of committing a particular crime must qualify as a "crime of violence" if any means of committing it is to be one. See Mathis, 136 S. Ct. at 2248-49, 2256; Descamps, 133 S. Ct. at 2276, 2281; Almanza-Arenas v. Lynch, 815 F.3d 469, 476-79 (9th Cir. 2015) (en banc); Ramirez v. Lynch, 810 F.3d 1127, 1134-38 (9th Cir. 2016). When a statute is divisible, therefore, not every conviction incurred under the statute must have the use or attempted or threatened use of physical force as an element.
As related to the Hobbs Act, for instance, if the Act is indivisible, every instance of violating the Act must involve force. And plainly it doesn't; extortion under color of official right, for instance, is committed by inducing a victim to part with property by wrongfully threatening to use an office to the victim's detriment. Force need not be involved. See 18 U.S.C. § 1951(b)(2). But if the Hobbs Act is divisible—say, into robbery or extortion—then a Hobbs Act robbery might be a "crime of violence" while a Hobbs Act extortion is not.
Mendez contains some language suggesting the Hobbs Act is indivisible. The court says the Act "defines a crime using several permutations, any one of which constitutes the same offense." Mendez, 992 F.2d at 1490 (emphasis added). Taken literally, this statement would seem to mean that § 1951(a) is indivisible, at least as to some of the terms used in the subsection.
But the reasoning of the opinion suggests this statement should not be taken literally:
A person may be convicted for violating § 1951 if he interferes with interstate commerce by robbery, extortion, attempting or conspiring to
rob or extort, or committing or threatening violence in furtherance of a plan or purpose to violate the statute. Thus the question arises whether every permutation of § 1951 must be a "crime of violence" to find categorically that a § 1951 offense is a "crime of violence," or whether a categorical finding requires only that the particular permutation for which the defendant is convicted be a "crime of violence."Id. In other words, although it did not use the same terms as Descamps and Mathis, Mendez clearly considered whether § 1951(a) defined multiple crimes—robbery, extortion, conspiracy to commit robbery, and so forth—or whether it defined one crime—viz., interference with commerce by wrongful use of force or threats.
Further, Mendez concluded that the Hobbs Act defines more than one crime. The court stated that, "where a defendant has been convicted under a statute describing crimes [plural] of both violence and non-violence, we need only find that the charged crime for which the defendant was convicted constitutes a 'crime of violence' to conclude categorically that the charged offense may serve as a predicate for a § 924(c) violation." Mendez, 992 F.2d at 1491. The court went on to discuss only robbery, not extortion, and it considered robbery and conspiracy to rob separately. Since the court did not consider extortion at all, it necessarily (albeit implicitly) concluded it did not matter whether extortion was a crime of violence or not.
Therefore, Mendez tacitly held that § 1951(a) of the Hobbs Act is divisible and that robbery and extortion and conspiracy to commit robbery are separate crimes. See Mendez, 992 F.2d at 1490-91 (discussing United States v. Potter, 895 F.2d 1231 (9th Cir. 1990) (construing Cal. Penal Code § 261(a)(2)), and United States v. Selfa, 918 F.2d 749 (9th Cir. 1990) (construing first and second paragraphs of 18 U.S.C. § 2113(a)); see also Callanan v. United States, 364 U.S. 587, 595-97 (1961) (holding that Hobbs Act conspiracy is separate crime from substantive offenses but declining to consider whether the "repetitive" nature of "some of the substantive sections" indicates they are "variants in phrasing of the same delict").
If Mendez had reasoned or assumed that some Hobbs Act robberies may be violent and others non-violent, it would indeed be irreconcilable with Mathis and Descamps. But it is only necessary to translate Mendez's terms into the contemporary terminology and read the opinion as holding, in part, that 18 U.S.C. § 1951(a) is divisible. Mathis and Descamps do not "undercut the theory or reasoning underlying [Mendez] in such a way that the cases are clearly irreconcilable." Gonzalez, 677 F.3d at 389 n.4.
2. Mendez Can Be Reconciled With Johnson I (2010)
Johnson I holds that a crime cannot be characterized as a "violent felony" unless its elements require proof the defendant used "violent force—that is, force capable of causing physical pain or injury to another person." Johnson I, 559 U.S. at 140 (emphasis in original). A crime that may be proved by showing only a use of "force" in the common-law sense, which includes a mere offensive touch, does not require "violent force" and so cannot be a "violent felony." Id. at 139.
Every federal appellate court that has considered the issue after Johnson I has held that a Hobbs Act robbery necessarily requires proof of the use or attempted or threatened use of physical force against the person or property of another within the meaning of § 924(c)(1)(A). See, e.g., United States v. Rivera, 847 F.3d 847, 848-49 (7th Cir. 2017); United States v. Gooch, 850 F.3d 285, 290-92 (6th Cir.), cert. denied, No. 16-9008 (U.S. June 5, 2017); United States v. Hill, 832 F.3d 135, 138-39 (2d Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); In re St. Fleur, 824 F.3d 1337, 1340 (11th Cir. 2016). As the United States points out, the traditional concept of robbery is closely related to physical violence. Black's Law Dictionary "defines 'physical force' as '[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim." Resp. to § 2255 Mot. (Doc. 66) at 13 (quoting Johnson I, 559 U.S. at 139 (emphasis added) (quoting Black's Law Dict. 717 (9th ed. 2009)). The current federal generic definition of robbery does not mention force per se, but it consists of "aggravated larceny, containing at least the elements of misappropriation of property under circumstances involving immediate danger to the person." United States v. Becerril-Lopez, 541 F.3d 881, 891 (9th Cir. 2008) (emphasis altered) (quoting United States v. Santiesteban-Hernandez, 469 F.3d 376, 380 (5th Cir. 2006), abrogated in part by United States v. Rodriguez, 711 F.3d 541, 554-55 (5th Cir. 2013) (en banc)).
Seeking to avoid the weight of this authority, Perez cites cases interpreting statutes containing similar language and holding that a de minimis use of force satisfies their "use of force" elements. See, e.g., United States v. Parnell, 818 F.3d 974, 978-82 (9th Cir. 2016). But Perez does not cite a case, and the Court is not aware of one, holding that a purse-snatching type of robbery—for instance, running past a pizza delivery driver and grabbing a collection pouch out of his hands—meets the definition of a Hobbs Act robbery. If and when that happens, Mendez might no longer be reconcilable with Johnson I. See Howard, 650 Fed. Appx. at 468 n.1 (citing United States v. Dominguez-Maroyoqui, 748 F.3d 918, 921 (9th Cir. 2014), and reserving the issue). But, so far as Perez can show, that day has not arrived.
One such case is—or was—United States v. Jones, 830 F.3d 142, No. 15-1518-cr (2d Cir. July 21, 2016). At the time Perez filed his reply brief, the case held that a conviction for first-degree robbery under New York law, which is similar to the Hobbs Act, was no longer a "crime of violence" under the career offender guideline, U.S.S.G. § 4B1.2(a). See Jones, No. 15-1518-cr, Opinion (Doc. 96-1) at 19 (2d Cir. July 21, 2016). But the United States petitioned for rehearing, both on the court's reasoning as to the degree of force under Johnson I and as to the application of Johnson II to the Sentencing Guidelines. See generally U.S. Pet. for Reh'g (Doc. 108), Jones, No. 15-1518-cr (2d Cir. filed Sept. 13, 2106). The court subsequently withdrew its opinion. See Jones, 838 F.3d 296 (2d Cir. Oct. 3, 2016). It is now available only in the electronic record of the case in Pacer.
Perez also cites cases sustaining convictions for extortion under the Hobbs Act where no violent physical force is involved. See Mot. § 2255 at 15 (citing United States v. Villalobos, 748 F.3d 953 (9th Cir. 2014); United States v. Sturm, 870 F.2d 769 (1st Cir. 1989)). One can argue that the Hobbs Act's definitions of robbery and extortion overlap with each other and differ significantly from traditional definitions. Hobbs Act robbery reaches the act of taking another's property by threatening future injury to the property of an absent family member. That is more typical of extortion than robbery. See, e.g., 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(a) intro., at 172-73 (2d ed. 2003); § 20.3(d), at 186-87; 20.4(a)(4) & n.16 at 200-03; § 20.4(b), at 203-04 & n.31.1 (2d ed. 2003 & Supp. 2016-2017) (citing Becerril-Lopez, 541 F.3d at 891). But the difference between Hobbs Act robbery and Hobbs Act extortion lies in robbery's requirement that the defendant take or obtain property "from the person or in the presence of another" and "against his will," by means that may include actual or threatened force, violence, or "fear of injury." The quoted phrases—none of which appear in the definition of extortion—show that physical force is always involved in robbery, a fact that distinguishes robbery from extortion under the Hobbs Act.
Johnson I is not "clearly irreconcilable" with the Mendez court's holding that Hobbs Act robbery has, as an element, the use or attempted or threatened use of physical force against the person or property of another.
3. Mendez Can Be Reconciled With Leocal
Finally, Perez argues that the Hobbs Act fails to meet the mens rea requirement of Leocal v. Ashcroft, 543 U.S. 1 (2003). Analogizing bank robbery under 18 U.S.C. § 2113 to the Hobbs Act, see United States v. Holloway, 309 F.3d 649, 651-52 (9th Cir. 2002), he also argues that intimidation would suffice to meet the elements of robbery and that intimidation requires only that the victim experience it, not that the defendant intend to cause it. See Mot. § 2255 at 17-18.
On these points, the Court disagrees. Intimidation facilitates a taking when it is perceived as a threat to use physical force. Perez is correct that a victim's perception of a threat does not always mean the defendant made a threat. But the Hobbs Act requires proof that a defendant obtain property "by robbery or extortion." 18 U.S.C. § 1951(a) (emphasis added). The statute requires proof, in other words, of goal-driven behavior by the defendant, be it a deployment of force or violence or intimidating threat, for the purpose of compelling or inducing someone to give up property. Such conduct falls within the highest form of intent required by Leocal: the use (or attempted or threatened use) of violence or unlawful threats as a means to an end. See Leocal, 543 U.S. at 9. Leocal is easily reconciled with Mendez.
D. Conclusion: Perez's Motion is Controlled By Mendez
As explained above, the question is whether Mendez is "clearly irreconcilable" with subsequent Supreme Court decisions. The answer to that question is at least "not clearly enough." Its manner of analysis may have been incomplete or even incorrect, but it is not so clearly incomplete or incorrect that this Court is bound to overlook it. Therefore, the Court must follow it.
Because Mendez holds that a Hobbs Act robbery is a crime of violence under § 924(c)(3)(A), and because Johnson could only be pertinent to § 924(c)(3)(B), Johnson does not support relief for Perez. His § 2255 motion must be denied. There is no need to consider the United States' procedural defenses.
IV. Certificate of Appealability
A certificate of appealability is not warranted. Even if Mendez is no longer good law, that fact would not help Perez to show that he was deprived of a constitutional right. See 28 U.S.C. § 2253(c)(2). And even if § 924(c)(3)(B) is unconstitutional in light of Johnson, Johnson has no bearing on § 924(c)(3)(A) or Mendez.
Accordingly, IT IS HEREBY ORDERED:
1. Perez's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255 (Doc. 63) is DENIED;
2. A certificate of appealability is DENIED. The clerk shall immediately process the appeal if Perez files a Notice of Appeal.
3. The clerk shall ensure that all pending motions in this case and in CV 16-100-BLG-SPW are terminated and shall close the civil file by entering judgment in favor of the United States and against Perez.
DATED this 28th day of November, 2017.
/s/_________
Susan P. Watters
United States District Court