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United States v. Savath

United States District Court, D. Oregon, Eugene Division

March 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SENGCHANH DIA SAVATH, Defendant.

          OPINION AND ORDER

          Michael McShane United States District Judge

         Pursuant to 28 U.S.C. § 2255, Defendant Sengchanh Dia Savath moves to vacate or correct his 30 year sentence imposed pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).[1] Because Savath's convictions for Robbery II and Assault IV no longer qualify as predicate offenses under the ACCA, Savath's motion to vacate his sentence is GRANTED. Savath is ordered to be transported to the District of Oregon for resentencing.

         BACKGROUND

         At Savath's sentencing, the Court adopted the recommendations in the presentence report and sentenced Savath to 360 months under the ACCA. The court found that Mr. Savath qualified for a sentence under the ACCA because he had previously been convicted of three predicate “violent felonies:” (1) an Oregon conviction for Robbery II; (2) an Oregon conviction for Assault II; and (3) an Oregon conviction for Felony Assault IV. See Statements of Reasons at 1, ECF No. 185; ECF No. 151. The Ninth Circuit Court of Appeals affirmed Savath's conviction. United States v. Savath, 398 F. App'x 237 (9th Cir. 2010), cert denied, 562 U.S. 1239 (2011). On June 20, 2016, Savath filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, arguing that his convictions for Robbery II, ORS § 164.405, and Assault IV, ORS § 163.160, no longer qualify as violent felonies in light of Johnson v. United States (“Johnson II”), __U.S.__, 135 S.Ct. 2251 (2015), which struck down the ACCA residual clause as unconstitutionally vague.

         LEGAL FRAMEWORK

         Under 28 U.S.C. § 2255, a prisoner may move to have his sentence vacated or corrected if it “was imposed in violation of the Constitution or laws of the United States.” § 2255(a). A motion pursuant to § 2255 must be filed within a year from the date on which a petitioner's conviction becomes final, unless an exception applies. Id. § 2255(f)(1). Under § 2255(f)(3), a petitioner may file a motion to vacate if it “assert[s] . . . [a] right . . . newly recognized by the Supreme Court.” Such a motion must be filed one year from “the date on which the right asserted was initially recognized by the Supreme Court, ” id., and the Supreme Court or controlling Court of Appeals has declared the right retroactively applicable on collateral review. Dodd v. United States, 545 U.S. 353, 358-59 (2005).

         DISCUSSION

         Both parties agree that: (1) Johnson II provided Savath with a newly recognized right; (2) Welch v. United States, 136 S.Ct. 1257, 1265 (2016) held that Johnson II applies retroactively; and (3) Savath's motion is therefore timely. The present case turns on whether Savath's prior Oregon convictions for Robbery II and Assault IV qualify as predicate offenses under the ACCA after Johnson II. If not, Savath's “enhanced” sentence exceeds the statutory maximum.

         I. The Categorical Analysis

         The ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” 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 the 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) (emphasis added). The final clause, emphasized above, is the “residual clause.”

         After Johnson II, a sentence imposed pursuant to the residual clause of the ACCA violates the Constitution and is subject to collateral attack under 28 U.S.C. § 2255. 135 S.Ct. at 2555-57; see also Welch, 136 S.Ct. at 1265 (holding that the rule announced in Johnson II applies retroactively to cases on collateral review). In the wake of these decisions, a prior conviction will only qualify as a violent felony if it: (1) “has an element the use, attempted use, or threatened use of physical force against the person of another, ” (the “force clause”); or (2) “is burglary, arson, or extortion, [or] involves the use of explosives, ” (the “enumerated offenses.”).

         Courts utilize a three-step “categorical approach” when determining whether a state conviction qualifies as a predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 600 (1990); Descamps v. United States, 570 U.S. 254, 257 (2013); Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). During each step, the court must “look only to the fact of the conviction and the statutory definition of the prior offense.” Taylor, 495 U.S. at 602. More specifically, at each step the “focus [is] solely on whether the elements of the crime of conviction sufficiently match the elements of [the generic offense or the force clause], while ignoring the particular facts of the case.” Mathis, 136 S.Ct. at 2248. The Ninth Circuit recently described this approach-where the court's ability to turn to documents such as a pre-sentence report is severely curtailed-as “counterintuitive.” See United States v. Walton, No. 15-50358, 2018 WL 650979, at *2 (9th Cir. Feb 1, 2018) (“Counterintuitive though it may seem, to determine whether a defendant's conviction under a state criminal statute qualifies as a violent felony under the force clause, we do not look to the underlying facts of the defendant's actual conviction.”).

         “At the first step, we compare the elements of the state offense to the elements of the generic offense defined by federal law.” Lopez-Valencia v. Lynch, 798 F.3d 863, 867-68 (9th Cir. 2015). Under the categorical approach, courts do not look beyond the elements of the statute of conviction and must presume that the conviction rests upon the least of the acts criminalized. Ramirez v. Lynch, 810 F.3d 1127, 1131 (9th Cir. 2016). If the state offense criminalizes conduct that falls outside the elements of the federal offense, the state statute is “overbroad.” Lopez-Valencia, 798 F.3d at 867-68. Convictions under overbroad statutes will not suffice as predicate offenses. Ramirez v. Lynch, 810 F.3d at 1131.

         If the court determines the statute to be overbroad, then the analysis turns to step two, which is to determine if the statute is “divisible.” A statute is “divisible” if it “compromises multiple, alternative versions of the crime.” Descamps, 570 U.S. at 262. The focus on this portion of the analysis is to look at state law to resolve whether the statute is divisible. Mathis, 136 S.Ct. at 2256; see also United States v. Ankeny, Case No. 3:04-cr-00005-MO-1, 2017 WL 722580, at *4 (D. Or. Feb. 23, 2017) (“To determine whether the elevating conditions are separate elements as opposed to separate means, I must look to Oregon state law.”). “The critical distinction between indivisible and divisible statutes is that while indivisible statutes may contain multiple, alternative means of committing the crime, only divisible statutes contain alternative elements of functionally separate crimes.” Rendon v. Holder, 764 F.3d 1077, 1084-85 (9th Cir. 2014). The key inquiry in determining a statute's divisibility is whether a jury would have to be unanimous in finding separate elements. Ramirez, 810 F.3d at 1134

         Finally, if the statute is overbroad and divisible, courts proceed to step three, the “modified categorical approach.” Lopez-Valencia v. Lynch, 798 F.3d 863, 868 (9th Cir. 2015). Under the modified categorical approach, a court may look at a limited range of documents to determine what formed the basis of the defendant's conviction. Descamps, 570 U.S. at 277-78; Lopez-Valencia, 798 F.3d at 868 (“At this step, we examine certain documents from the defendant's record of conviction to determine what elements of the divisible statute he was convicted of violating.”). Courts look to those documents to ascertain whether the defendant was convicted of a set of elements qualifying as a predicate offense under the ACCA. Mathis, 136 S.Ct. at 2249; Ramirez, 810 F.3d at 1131. Of particular interest to Savath's case, while guilty pleas may establish ACCA predicate offenses, the Court's ability to review documents under the modified categorical approach is severely limited. Shepard v. United States, 544 U.S. 13, 19, 26 (2005). The documents subject to review, i.e., the Shepard documents, are limited to the “terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information.” Id. at 26. The government bears the burden of introducing evidence demonstrating the defendant was convicted of a crime qualifying as a predicate offense under the ACCA. United States v. Pallares-Galan, 359 F.3d 1088, 1099 (9th Cir. 2004)).

         Here, neither party asserts that Robbery II or Assault IV falls within the ACCA's list of enumerated offenses, so my analysis focuses on the force clause. To qualify as a predicate offense under the force clause, the state statute must have “as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). “Physical force” within the ACCA means “violent force-that is, force capable of causing physical pain or injury to another person.” Johnson v. United States (“Johnson I”), 559 U.S. 133, 140 (2010).

         In determining whether a conviction involves violent force, courts look at the text of the statute and the state courts' interpretation of its terms. United States v. Strickland, 860 F.3d 1224, 1226 (9th Cir. 2017). “State cases that examine the outer contours of the conduct criminalized by the state statute are particularly important because ‘we must presume that the conviction rested upon [nothing] more than the least of th[e] acts criminalized.'” Id. at 1226-27 (quoting Moncrieffe v. Holder, 569 U.S. 184, (2013)).

         The Ninth Circuit has held that an offense must be committed “knowingly” or “intentionally” to qualify as a violent felony and statutes permitting conviction based upon recklessness or criminal negligence fall outside of the ACCA. See, e.g., United States v. Dixon, 805 F.3d 1193, 1197 (9th Cir. 2015) (“[T]he use of force must be intentional, not just reckless or negligent.”); United States v. Parnell, 818 F.3d 974, 982 n.5 (9th Cir. 2016) (“We have held, however, that the ACCA's force clause reaches only offenses requiring the intentional use of force.”)). Given the above framework, I turn to Savath's prior convictions.

         II. ...


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