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United States v. Hooser

United States District Court, D. Oregon, Portland Division

May 7, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
HAROLD VAN HOOSER Defendant.

          OPINION AND ORDER

          Robert E. Jones, United States District Court Judge

         This matter comes before the Court on Defendant's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [#33. For the reasons set forth below, I DENY Defendant's Motion.

         BACKGROUND

         In 1997, defendant Harold Van Hooser Van Hooser pled guilty to one count of being a felon in possession of a firearm and six counts of armed bank robbery. Prior to his guilty pleas in this, Van Hooser had five prior Oregon state convictions that the government relied on at sentencing in pursuing the ACCA sentencing enhancements.

         • Rape and Kidnapping in Douglas County Circuit Court, case #37599;

         • Robbery I, in Coos County Circuit Court; case #79-626;

          • Robbery I, in Douglas County Circuit Court, case #J79-1123;

         • Burglary I, in Douglas County Circuit Court, case #J79-1122; and

         • Burglary I, in Douglas County Circuit Court, case #J79-1121.

         In pursuing the three strikes enhancement, the government relied on the Rape and Kidnapping conviction and the two Robbery I convictions listed above.

         Pursuant to the Armed Career Criminal Act (ACCA), Judge Redden sentenced Van Hooser to 235 months for being a felon in possession of a firearm and, pursuant to the federal "three strikes" provision, to two life terms for the armed bank robberies.

         In 2015, the United States Supreme Court held that "imposing an increased sentence under the residual clause of [ACCA] violates the Constitution's guarantee of due process." United States v. Johnson (Johnson II), 135S.Ct.2551, 2563 (2015). A year later, the Court deemed its ruling retroactive. Welch v. United States, 136 S.Ct. 1257 (2016). Thereafter, Van Hooser filed this motion challenging his sentence by asserting that the predicate prior convictions required to trigger the ACCA sentencing enhancement (18 U.S.C. § 924(e)) and the "three strikes" provision (18 U.S.C. §3559(c)) relied on the residual clauses in those statutes. He asked to be resentenced in accordance with the statutory maximum of 25 years.

         Van Hooser did not appeal his conviction or sentence. But, in 2016, he filed this Motion to Vacate or Correct Sentence under 28 U.S.C. § 2255 based on the Supreme Court's ruling in Johnson II. Specifically, Van Hooser contends that once the residual clause of the ACCA was invalidated, none of his prior convictions qualifies as a "violent felony" under the ACCA and none of the prior convictions qualifies as a "serious violent felony" under the "three strikes" enhancement.

         In response, the Government argues that Van Hooser has not presented any evidence showing Judge Redden relied on the residual clause of the ACCA at sentencing. Further, that even without the residual clause, both the Rape and Kidnapping conviction and the Robbery I convictions constitute predicate violent felonies under the ACCA because they satisfy the force clause of the ACCA (18 U.S.C. § 924(e)(2)(B)(i)).[1] Lastly, the government asserts that Van Hooser's prior convictions remain predicates for the "three strikes" enhancement because Judge Redden did not rely on the residual clause ofl8U.S.C. §3559 (c) when he imposed the sentencing enhancement and, alternatively Johnson //does not apply to the "three strikes" provision.

         DISCUSSION

         1. Sentencing Enhancements Under the ACCA

         A person who has previously been convicted of "a crime punishable for a term exceeding one year" may not possess or receive any firearm or ammunition, "which has been shipped or transported in interstate or foreign commerce." 18 U.S.C. § 922(g) A person who violates § 922(g) and has three qualifying prior convictions for a violent felony or serious drag offense is subject to imprisonment of not less than 15 years, regardless of the statutory maximum for the offense. Under § 924(e)(2)(B), the term "violent felony" means any crime 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[.]" In Johnson II, the Supreme Court held that the last portion of § 924(e)(2)(B)(ii), commonly known as the residual clause, is void for vagueness. Thus, in order for a person to be subject to the ACCA enhancement the prior felony convictions must either include the use, attempted use or threatened use of physical force ("force clause") or be burglary, arson, extortion or one that involves the use of explosives ("enumerated list".) Two of Van Hooser's prior convictions are for Robbery I and if Robbery I is not a "violent felony" under the ACCA, then he will not have three qualifying prior convictions. As Robbery I is not included in the enumerated list, I must determine if Van Hooser was sentenced pursuant to the residual clause, and if so, whether his convictions qualify as a violent felonies under the force clause for purposes of the ACCA.

         2. Was Van Hooser sentenced under the residual clause?

         The government argues that Van Hooser has not met his burden to prove that Judge Redden sentenced him pursuant to the now unconstitutional residual clause. See, Simmons v. Blodgett, 110F.3d39 (9th Cir. 1997). Neither party points to any evidence from the sentencing memoranda, the Presentence Report, the sentencing hearing, or Judge Redden's sentencing Opinion and Order [#52, p, 89-93], to prove Judge Redden relied on the residual clause when he imposed the sentence. "[W]hen it is unclear whether a sentencing court relied on the residual clause in finding that a defendant qualified as an armed career criminal, but it may have, the defendant's § 2255 claim 'relies on' the constitutional rule announced in Johnson II." United States v. Geozos, 870 F.3d 890, 896 (9th Cir, 2017). But, "it may be possible to determine that a sentencing court did not rely on the residual clause-even when the sentencing record alone is unclear-by looking to the relevant background legal environment at the time of sentencing." Geozos, 870 F, 3d at 896. The government points to an unpublished Ninth Circuit case, United States v. Varnado, 952 F.2d 1400 (9th Cir. 1992), in which, five years prior to Judge Redden's sentencing of Van Hooser, the court reversed a sentence imposed by Judge Redden for the identical crime. The Court stated: "Varnado's prior Oregon conviction[] for first-degree robbery .., qualif[ies] as [a] violent felon[y] under the Armed Career Criminal Act because [it] ha[s] '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)." I find the government's argument persuasive. When the Ninth Circuit reverses a decision by a District Court judge, whether the decision is published or unpublished, the District Court judge takes the reversal as marching orders for future cases, I have no doubt Judge Redden remembered the outcome of the Vardano case and sentenced Van Hooser based on the force clause. However, even if Judge Redden did rely on the residual clause when imposing the ACCA enchancement, it is of no help to Van Hooser because, as set out in the next section, I find Robbery I constitutes a "violent felony" under the ACCA.

         3. Determining Whether Robbery I Constitutes a Violent ...


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