UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Action No. 02-294 (BAH) PAUL EDWARD HAMMOND, Chief Judge Beryl A. Howell Defendant.

MEMORANDUM OPINION

In 2003, the defendant Paul Hammond pleaded guilty to possessing a firearm after having

a prior felony conviction, in violation of

(g)(1), and to armed robbery, in

violation of

, 22-3202. He was subsequently sentenced to 115 months’

imprisonment on the firearm conviction and 240 months’ imprisonment on the armed robbery

conviction, to be served consecutively. Judgment in a Criminal Case (“Judgment”) at 2, ECF

No. 25. Under the United States Sentencing Guidelines (“Guidelines”) that governed

Hammond’s sentence for the federal firearm conviction, his Guidelines sentencing range for the

firearm conviction was 92 to 115 months’ imprisonment, based on his two prior convictions for a

“crime of violence.” See Judgment, Statement of Reasons (“SOR”), at 6, ECF No. 25; see also

U.S.S.G. § 2K2.1(a)(2) (2003).1

Since Hammond’s sentencing, the Supreme Court has held unconstitutional laws that

enhance criminal sentences due to a defendant’s prior conviction for a crime of violence, as

defined by the so-called “residual clause.” See Johnson v. United States,

(2015).

Hammond claims that because he was sentenced at a time when the Guidelines had the force of

1 Hammond’s instant motion relates exclusively to his sentence for the federal firearm conviction. See Def.’s Supp. Mot. Vacate at 1 n.1, ECF No. 27.

1 law, and because his sentence was enhanced through application of the residual clause, he is

entitled to resentencing on his firearm conviction. Thus, Hammond filed a motion, under

, asking that his 115-month sentence be vacated and that he be resentenced under

the current Guidelines. See Def.’s Mot. Vacate, Set Aside, or Correct Sentence (“Def.’s § 2255

Mot.”), ECF No. 24, as supplemented, Def.’s Supp. Mot. Vacate (“Def.’s Supp. § 2255 Mot.”),

ECF No. 27.

To prevail, Hammond must first overcome two procedural barriers imposed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

Stat.

1214, and then establish that the Supreme Court itself has recognized, and made retroactive, a

right not to have a criminal sentence enhanced pursuant to the mandatory Guidelines’ residual

clause. Hamond has made those showings. Second, Hammond must establish that without the

residual clause, his prior convictions do not qualify as crimes of violence. Hammond fails at this

second stage because the prior convictions that served as the basis for his enhanced sentence

constitute crimes of violence under the Guidelines’ so-called “elements clause.” Thus,

Hammond’s § 2255 motion is denied.

I. BACKGROUND

On April 15, 2002, a District of Columbia Metropolitan Police Department (“MPD”)

officer learned of a man at the intersection of Florida Avenue and V Street, N.W., Washington,

D.C., wielding a handgun. Presentence Report (“PSR”) ¶¶ 12–13, ECF No. 36. The officer

approached a man at that intersection, later identified as Hammond, who lifted his shirt, and the

officer observed a handgun. Id. ¶ 13. Hammond was arrested. Id. Shortly thereafter, MPD

discovered that two men had just committed an armed robbery at a nearby clothing store. Id.

¶¶ 14–15. The investigation disclosed that Hammond was one of the two and that during the

2 robbery Hammond had struck a victim with a clothing rack, placed a gun to the victim’s head,

and pulled the trigger twice. Id. The gun did not fire and Hammond fled. Id.

As noted, Hammond pleaded guilty, in August 2003, to charges of unlawful possession of

a firearm by a person with a prior felony conviction, in violation of

(g)(1), and

armed robbery, in violation of

(now codified at

) and

. See Plea Agreement at 1, ECF No. 17; see also Judgment at 1.

At Hammond’s sentencing, in December 2003, the presiding judge generally adopted

“the factual findings and guideline application in the [PSR].” Judgment, SOR, at 6. According

to the PSR, Hammond had at the time of sentencing, four adult criminal cases resulting in

convictions, including: (1) a Maryland conviction for shoplifting and possession of drug

paraphernalia, PSR ¶ 33; (2) a D.C. Superior Court conviction for petty larceny and shoplifting,

; (3) a federal conviction for bank robbery,

; and (4) a Maryland conviction for

robbery with a deadly weapon,

. Based on the latter two convictions, in conjunction with

Hammond having committed the federal firearm offense while under a criminal sentence,

Hammond’s criminal history category under the Guidelines was IV.

¶¶ 37–39.

The PSR determined that Hammond’s base offense level, under U.S.S.G. § 2K2.1(a)(2)

(2003), was 24, PSR ¶ 22, which reflected that Hammond had “committed any part of the instant

offense subsequent to sustaining at least two felony convictions of either a crime of violence or a

controlled substance offense,” U.S.S.G. § 2K2.1(a)(2) (2003).2 This base offense level was

increased by four levels, due to Hammond’s possession of a gun in connection with another

felony, PSR ¶ 23 (citing U.S.S.G. § 2K2.1(b)(5) (2003)), and reduced by two levels for his

acceptance of responsibility, PSR ¶ 29 (citing U.S.S.G. § 3E1.1(a) (2003)). This resulted in a

2 The PSR cites U.S.S.G. § 2K2.1(a)(1) for Hammond’s base offense level of 24, see PSR ¶ 22, but this citation appears to be a typographical error, as the base offense level of 24 is set out in U.S.S.G. § 2K2.1(a)(2).

3 total offense level for the firearm conviction of 26. PSR ¶ 30. Hammond’s criminal history

category of IV and offense level of 26 resulted in a Guidelines range of 92 to 115 months’

imprisonment. U.S.S.G. Ch. 5 Pt. A (2003); see also Judgment, SOR, at 6.

As used in U.S.S.G. § 2K2.1 at the time of Hammond’s sentencing, “‘[c]rime of

violence’ has the meaning given that term in § 4B1.2(a) and Application Note 1 of the

Commentary to § 4B1.2.” U.S.S.G. § 2K2.1 cmt. n. 5 (2003). In turn, § 4B1.2(a) of the

Guidelines version under which Hammond was sentenced defined “crime of violence” in three

ways. First, under the “elements clause,” crimes of violence included any felony that “has as an

element the use, attempted use, or threatened use of physical force against the person of

another.” Id. § 4B1.2(a)(1) (2003). Second, under the “enumerated-felonies clause,” crimes of

violence included “burglary of a dwelling, arson, or extortion” or a felony that “involves use of

explosives.” Id. § 4B1.2(a)(2) (2003). Third, under the “residual clause,” crimes of violence

included any felony that “otherwise involves conduct that presents a serious potential risk of

physical injury to another.” Id.3

At the time of Hammond’s sentencing, Congress’s instruction that “court[s] shall impose

a sentence of the kind, and within the range, referred to [in the Guidelines],”

(b)(1), was still effective. Thus, Hammond was sentenced on his federal firearm

conviction to a within Guidelines sentence of 115 months’ imprisonment, to run consecutively

with a 240-month sentence on the armed robbery conviction. Judgment at 2. According to the

Bureau of Prisons, Hammond’s scheduled release date is January 22, 2028. See Find an Inmate,

3 The 2016 version of the Guidelines amended the definition of “crime of violence” by eliminating the residual clause and rewriting the enumerated-felonies clause to include “murder, voluntary manslaughter, kidnapping, aggravated assault, a forcible sex offense, robbery, arson, extortion, or the use or unlawful possession of a firearm described in

(a) or explosive material as defined in

(c).” Compare U.S.S.G. § 4B1.2(a)(2) (2003) with U.S.S.G. § 4B1.2(a)(2) (2016).

4 FEDERAL BUREAU OF PRISONS, https://www.bop.gov/inmateloc/ (search “Paul Edward

Hammond”).

Hammond did not appeal his convictions or sentence.

In 2005, federal sentencing was affected by the first legal shift at the heart of this case.

Over the preceding five years, the Supreme Court had ruled, in Apprendi v. New Jersey,

(2000), and Blakely v. Washington,

(2004), that the Sixth Amendment protects

a defendant’s right to have all facts, other than a prior conviction, that the law makes essential to

punishment, proved beyond a reasonable doubt. Then, in January 2005, the Supreme Court held

that, because the mandatory Guidelines required judges to increase sentences based on facts

found by only a preponderance of the evidence, the mandatory Guidelines suffered from the

same constitutional infirmity identified in Apprendi and Blakely. United States v. Booker,

, 231–34 (2005). As a remedy, the provision making the Guidelines mandatory was

severed.

(invalidating

(b)(1)). Thus, since Booker, the Guidelines

have been advisory.

Ten years later, the Supreme Court, in Johnson v. United States,

(2015),

held that the residual clause in the Armed Career Criminal Act of 1984 (“ACCA”), Pub. L. 98-

473,

, was unconstitutionally vague. Under the ACCA, a defendant convicted of a

federal firearm offense, under

(g), is subject to an enhanced sentence if the

defendant has three or more prior convictions for “a violent felony or a serious drug offense, or

both.” See

(e)(1). Pertinent here, § 924(e)(2)(B) defines “violent felony” in the

same way the 2003 version of the Guidelines defined “crime of violence”: first, in the elements

clause, as having “as an element the use, attempted use, or threatened use of physical force

against the person or another,”

(e)(2)(B)(i); second, in the enumerated-felonies

5 clause, as being one of several listed felonies,

§ 924(e)(2)(B)(ii); and, third, in the residual

clause, as involving “conduct that presents a serious potential risk of physical injury to another,”

id.4 In Johnson, which considered a vagueness challenge only to the residual clause’s definition

of violent felony, the Court ruled that “the indeterminacy of the wide-ranging inquiry required by

the residual clause both denies fair notice to defendants and invites arbitrary enforcement by

judges. Increasing a defendant’s sentence under the clause denies due process of law.”

. “Two features of the residual clause conspire[d] to make it unconstitutionally

vague.”

First, using the categorical approach to determine the risk that a prior conviction

posed “ties the judicial assessment of risk to a judicially imagined ‘ordinary case’ of a crime.”

Second, increasing punishment based on past convictions that posed a “serious potential risk

of physical injury to another” “leaves uncertainty about how much risk it takes for a crime to

qualify as a violent felony.”

.

The following year, the Supreme Court made Johnson retroactive to cases on collateral

review. See Welch v. United States,

(2016). Two months after Welch, to

avoid potential timeliness problems, Hammond filed an abridged § 2255 motion, see Def.’s

§ 2255 Mot., as permitted by this Court’s June 2, 2016 Standing Order, see Standing Order (June

2, 2016), http://www.dcd.uscourts.gov/sites/dcd/files/1853_001.pdf (authorizing defendants

asserting the right to resentencing following Johnson to file abridged motions by June 26, 2016,

which motions would be supplemented by October 26, 2016).

By the time that Hammond filed his abridged § 2255 motion, the sentencing judge had

retired and this case was reassigned to the undersigned judge on June 21, 2016.

4 The only difference between the ACCA’s definition of “violent felony” and the 2003 Guidelines’ definition of “crime of violence” is that the ACCA’s enumerated-felonies clause lists “burglary” while the Guidelines’ pre- 2016 enumerated-felonies clause lists “burglary of a dwelling.” Compare

(e)(2)(B)(ii) with U.S.S.G. § 4B1.2(a)(2) (2003).

6 Before the October 26, 2016 deadline, the Supreme Court granted certiorari in Beckles v.

United States to resolve whether a sentence under the Guidelines that relied on application of the

residual clause’s definition of crime of violence suffered the same vagueness problem identified

in Johnson. Following the grant of certiorari, this Court issued a second standing order staying

the October 26, 2016 supplemental briefing deadline for defendants challenging the Guidelines’

residual clause. See Standing Order 2 (Sep. 12, 2016),

http://www.dcd.uscourts.gov/sites/dcd/files/JohnsonUnitedStatesNo2.pdf.

Beckles v. United States,

(2017), decided in March 2017, clarified that

only laws that define crimes or fix permissible sentences are subject to vagueness challenges.

. Post-Booker, the Guidelines do neither.

Rather, the advisory Guidelines “merely

guide the exercise of a court’s discretion in choosing an appropriate sentence within the statutory

range.”

Thus, the advisory Guidelines’ residual clause survived constitutional scrutiny.

. After Beckles, this Court instructed petitioners subject to the prior standing orders to file

any supplemental pleadings by May 26, 2017. Standing Order 4 (Mar. 22, 2017),

https://www.dcd.uscourts.gov/sites/dcd/files/JohnsonUnitedStatesNo4.pdf.

Hammond filed a supplemental § 2255 motion on the new deadline. See Def.’s Supp.

§ 2255 Mot. The Court ordered the government to respond to Hammond’s pending motion, Min.

Order (dated Sep. 27, 2017), which the government did in November 2017, see Gov’t’s Opp’n

Def.’s Mot. Vacate (“Gov’t’s Opp’n”), ECF No. 30. Four months later, Hammond filed a reply

in support of his motion to vacate. Def.’s Reply Mot. Vacate (“Def.’s Reply”), ECF No. 32. He

supplemented the reply five days later to notify the Court of his exemplary record while

incarcerated. Def.’s Supp. Reply Mot. Vacate, ECF No. 33.

7 After Hammond’s reply, the Supreme Court struck down

(b) as

unconstitutionally vague. Sessions v. Dimaya,

(2018). Section 16(b),

which provided a federal definition of “crime of violence” that resembled the ACCA’s residual

clause, was incorporated into the Immigration and Nationality Act to determine which

individuals were subject to removal.

at 1210–11. Dimaya prompted a second supplement

from Hammond. Def.’s Second Supp. Reply. Mot. Vacate, ECF No. 34. Then, after the Seventh

Circuit issued a ruling in Cross v. United States,

(7th Cir. 2018), which addressed

many of the same issues raised in Hammond’s § 2255 motion, Hammond submitted another

supplemental filing. Def.’s Third Supp. Reply Mot Vacate, ECF No. 35.

Hammond’s motion to vacate is now ripe for review.

II. LEGAL STANDARD

A person in federal custody may petition the court in which he was sentenced for

resentencing “upon the ground that the sentence was imposed in violation of the Constitution or

laws of the United States, or that the court was without jurisdiction to impose such sentence, or

that the sentence was in excess of the maximum authorized by law, or is otherwise subject to

collateral attack … .”

(a). A court shall correct a sentence if “the sentence

imposed was not authorized by law or otherwise open to collateral attack, or that there has been

such a denial or infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack.”

§ 2255(b). The petitioner bringing a motion under

must establish, by a preponderance of the evidence, the denial of a constitutional right.

See United States v. Simpson,

(D.C. Cir. 1973).

All motions under § 2255 are subject to “the strict time limits that Congress has placed on

prisoners seeking collateral relief.” United States v. Hicks,

(D.C. Cir. 2002);

8 see also

(f). Section 2255 provides several possible one-year periods during

which a petitioner may file a motion, including within one year of “the date on which the right

asserted was initially recognized by the Supreme Court.”

(f)(3). A motion that

is timely under only § 2255(f)(3) must also show that the asserted right “has been newly

recognized by the Supreme Court and made retroactively applicable to cases on collateral

review.” Id. These are independent conditions limiting the availability of relief. Dodd v. United

States,

, 357–58 (2005).

III. DISCUSSION

Hammond’s sentence for his firearm offense reflects his two prior convictions for a

“crime of violence.” See PSR ¶¶ 22, 35, 36; U.S.S.G. § 2K2.1(a)(2) (2003). Hammond claims

that he is entitled to resentencing because Johnson holds that, for defendants sentenced before

Booker, the Guidelines’ residual clause is unconstitutionally vague. Def.’s Supp. § 2255 Mot. at

9–13. While Johnson was decided after Hammond’s convictions became final, Hammond

explains that Johnson has been given retroactive effect. Id. at 14–17. Finally, Hammond

maintains that without the residual clause, his Maryland armed robbery and his federal bank

robbery convictions do not qualify as crimes of violence under the Guidelines’ two other

definitions of crime of violence. Id. at 17–36.5

In response, the government puts forward multiple arguments for denial of this motion,

including that Hammond’s guilty plea waived the right to bring the instant § 2255 motion,

Gov’t’s Opp’n at 10–11; Hammond’s vagueness claim has been procedurally defaulted, id. at

11–12; Hammond’s motion is untimely, id. at 13–19; Johnson’s right has not been made

5 Even though Hammond contends that, without the residual clause, his Maryland conviction for robbery with a dangerous weapon is not a crime of violence, Hammond recognizes that United States v. Redrick,

(D.C. Cir. 2016), is squarely against him. Still, “for preservation purposes” Hammond argues that the Maryland conviction is not a crime of violence. Def.’s Supp. § 2255 Mot. at 33.

9 retroactive to cases like Hammond’s, id. at 20–25; Beckles precludes attacking for vagueness the

mandatory Guidelines, id. at 26–29; and, finally, even if Hammond prevails on these

aforementioned arguments, Hammond’s predicate convictions are crimes of violence under the

Guidelines’ elements clause, id. at 29–34.

For the reasons that follow, Hammond’s vagueness argument is neither untimely nor

procedurally defaulted. Moreover, Johnson has been made retroactive and enforcing that

decision requires invalidating any sentence enhanced through application of the mandatory

Guidelines’ residual clause. Despite clearing those hurdles, Hammond is not entitled to

resentencing on his federal firearm conviction because the prior convictions on which

Hammond’s enhanced sentence are based qualify as crimes of violence under the Guidelines’

elements clause.6

A. Hammond’s Motion to Vacate is Not Barred by AEDPA’s Procedural Requirements

The government gives two procedural reasons that AEDPA requires denying Hammond’s

§ 2255 motion: (1) timeliness and (2) default. Both are unavailing for the reasons discussed

below.

1. Timeliness Under

(f)(3)

Motions under § 2255 are subject to a “1-year period of limitation.”

(f).

The limitation period runs from the latest of several possible dates, with only one date available

to Hammond: “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.”

§ 2255(f)(3).

6 Considering whether Hammond’s guilty plea forecloses this motion is unnecessary because Hammond’s motion is denied on the merits.

10 Prior to 2005, circuit courts were divided as to how to read § 2255(f)(3). See Dodd v.

United States,

(2005) (referencing “conflict in the Court of Appeals over

when the limitation period in [§ 2255(f)(3)] begins to run”). Some courts read § 2255(f)(3)’s

limitation period to run from the date that the Supreme Court initially recognized a right, while

others read the period to run from the date that the right is made retroactive. Id. (summarizing

circuit split). Dodd ruled that under § 2255(f)(3), “[a]n applicant has one year from the date on

which the right he asserts was initially recognized by [the Supreme] Court” to file a motion. Id.

at 357. The Court reached that conclusion by emphasizing the unique function of § 2255(f)(3)’s

two clauses. Timeliness is wholly defined by the first clause, which authorizes motions filed

within one year of “the date on which the right asserted was initially recognized by the Supreme

Court.” Id. at 358 (“Dodd’s reliance on the second clause to identify the operative date is

misplaced.”). The second clause, which requires that the “right has been newly recognized by

the Supreme Court and made retroactively applicable to cases on collateral review,” operates to

“impose[] a condition on the applicability” of § 2255(f)(3). Id. “That means that

[§ 2255(f)(3)’s] date … does not apply at all if the conditions in the second clause … have not

been satisfied.” Id. Indeed, “[a]s long as the conditions in the second clause are satisfied so that

[§ 2255(f)(3)] applies in the first place, that clause has no impact whatsoever on the date from

which the 1–year limitation period in [§ 2255(f)(3)] begins to run.” Id.

Johnson was decided on June 26, 2015 and Hammond’s abridged motion was filed on

June 20, 2016. See Def.’s § 2255 Mot. Thus, Hammond filed his motion within one year of

Johnson. Nevertheless, the government claims that Hammond’s motion is untimely because “the

Supreme Court in Johnson did not itself recognize the substantive right that defendant now

claims entitles him to resentencing.” Gov’t’s Opp’n at 15. Instead, in the government’s view,

11 Johnson applies only to the ACCA and Hammond’s motion must wait until the Supreme Court

itself invalidates sentences pursuant to the mandatory Guidelines’ residual clause. Id. at 15–16.

Hammond counters that “Johnson announced the right not to have a sentence fixed by an

unconstitutionally vague residual clause,” Def.’s Reply at 10, leaving “no doubt that Johnson

rendered the residual clause of the mandatory Guidelines unconstitutionally void for vagueness,”

Def.’s Supp. § 2255 Mot. at 13.

While not yet addressed by the D.C. Circuit, other circuit courts have considered whether

a § 2255 motion attacking the mandatory Guidelines’ residual clause is timely if filed within a

year of Johnson. The Third, Fourth, Sixth, Ninth and Tenth Circuits have interpreted Johnson as

strictly limited to the ACCA and rejected petitions that, like Hammond’s, challenged the

mandatory Guidelines’ residual clause, as “untimely.” See United States v. Blackstone,

(9th Cir. 2018) (“As of now, however, Blackstone’s motion is untimely.”); United

States v. Green,

, 322–23 (3d Cir. 2018) (“We hold that Green’s motion is untimely

in light of the plain language of

(f)(3).”); United States v. Greer,

(10th Cir. 2018) (“We agree with the well-reasoned decisions of our sister circuits

and therefore hold that Mr. Greer’s motion is untimely.”); United States v. Brown,

(4th Cir. 2017) (“We are thus compelled to affirm the dismissal of Petitioner’s motion as

untimely under

(f)(3).”); Raybon v. United States,

(6th Cir.

2017) (“We conclude that his claim is not timely under

(f)(3).”). The First

Circuit, in a slightly different posture, also evaluated the timeliness of a motion like Hammond’s

as a product of whether Johnson extends to the mandatory Guidelines, and “tentative[ly]” ruled

12 that a motion like Hammond’s filed within one year of Johnson could not be dismissed as

untimely. Moore v. United States,

, 77 n.3, 80 (1st Cir. 2017).7

The Seventh Circuit has also addressed the timeliness of a motion attacking the

mandatory Guidelines’ residual clause, but jettisoned the analytic approach proposed by the

parties and seemingly used by other courts, of assessing the procedural timeliness of the § 2255

petition by examining the scope of the newly recognized right. As the Seventh Circuit aptly

observed, debating whether Johnson announced a right that applies to an enhanced sentence

under the mandatory Guidelines “improperly reads a merits analysis into the limitations period.”

Cross v. United States,

(7th Cir. 2018). Section 2255(f)(3)’s limitation period

“runs from ‘the date on which the right asserted was initially recognized by the Supreme

Court.’”

at 293–94 (emphasis in original). For timeliness, a petitioner “need only claim the

benefit of a right that the Supreme Court has recently recognized.”

. Whether a

petitioner successfully proves his entitlement is the separate, merits question. Cross,

; see also United States v. Snyder,

(10th Cir. 2017) (“Whether or not

Snyder can ultimately prevail on his motion, he asserts the right established in Johnson, to be

free from a sentence purportedly authorized by the unconstitutionally vague residual clause.

Thus, his § 2255 motion, filed within a year of the Court’s decision in Johnson, is timely under

§ 2255(f)(3).” (emphasis in original)).8 Otherwise, § 2255(f)(3)’s use of “asserted” would be

superfluous. Cross,

.

7 Moore considered only whether a successive § 2255 could be certified under

(h). 871 F.3d at 74. Thus, that court’s review of the issue was admittedly “tentative.” Id. at 80. 8 In Snyder, the Tenth Circuit considered the timeliness of a Johnson-based motion, in which the petitioner claimed that his sentence had been enhanced through application of the ACCA’s residual clause, 871 F.3d at 1124– 26, and ruled that the district court, by “look[ing] beyond the allegations contained in Snyder’s § 2255 motion” and determining timeliness by “whether Snyder was actually entitled to relief under Johnson,” wrongly applied § 2255(f)(3), id. at 1125–26. Snyder’s motion was timely independent of whether he actually had been sentenced under the residual clause because his motion “assert[ed] the right established in Johnson, to be free from a sentence purportedly authorized by the unconstitutionally vague residual clause.” Id. In so reasoning, the Snyder Court

13 This Court agrees with the Seventh Circuit that the timeliness of a § 2255 motion is an

independent inquiry from whether the motion seeks to vindicate a newly recognized right

applicable to the petitioner. The courts that have viewed timeliness through the lens of

Johnson’s scope settled on that approach by emphasizing § 2255(f)(3)’s second clause, which

conditions relief under that section to motions claiming rights that have “been newly recognized

by the Supreme Court.” Blackstone, 903 F.3d at 1025–26; Green, 898 F.3d at 320–21; Greer,

; Brown,

; Raybon,

. This analysis falls short of

grappling with Dodd, which made clear that timeliness under § 2255(f)(3) is exclusively a

function of that provision’s first clause: when “the right asserted was initially recognized by the

Supreme Court.” Dodd,

(“Dodd’s reliance on the second clause to identify the

operative date is misplaced.”);

(“As long as the conditions in the second clause are satisfied

so that [§ 2255(f)(3)] applies in the first place, that clause has no impact whatsoever on the date

from which the 1–year limitation period in [§ 2255(f)(3)] begins to run.”). Injecting into the

timeliness analysis whether a right has in fact been newly recognized emphasizes the wrong

clause.

Focusing on only the first clause, Congress ran the limitation period from when “the right

asserted was initially recognized by the Supreme Court.”

(f)(3) (emphasis

endorsed the same methodology the Seventh Circuit employed. Nevertheless, in United States v. Greer,

(10th Cir. 2018), another panel of the Tenth Circuit subsequently ruled that a motion like Hammond’s was untimely after tethering the timeliness analysis to whether Johnson in fact required granting the petitioner’s motion,

. Despite the cases’ analytic inconsistencies, Greer did not overrule Snyder. Rather, Greer distinguished Snyder as a case that “raised a factual question about which clause of the ACCA the sentencing court relied on in enhancing his sentence.”

. By contrast, “[a] factual finding that Mr. Greer was sentenced under the residual clause of the mandatory Guidelines does not end our inquiry but raises a new one. Such a finding would then require this court to address the constitutionality of the residual clause of the mandatory Guidelines in the first instance on collateral review.”

Yet, the new inquiry that Greer resisted is precisely what § 2255(f)(3)’s second clause, as Dodd explained, requires of lower courts. Snyder correctly recognized that the timeliness inquiry is occupied by only § 2255(f)(3)’s first clause and the nature of the right asserted. 871 F.3d at 1126. The merits of a petitioner’s claim must be addressed separately. Id. at 1128–30.

14 added). Of course, “[t]o ‘assert’ means ‘[t]o state positively’ or ‘[t]o invoke or enforce a legal

right.’ Thus, in order to be timely under § 2255(f)(3), a § 2255 motion need only ‘invoke’ the

newly recognized right, regardless of whether or not the facts of record ultimately support the

movant’s claim.” Snyder,

(quoting Assert, BLACK’S LAW DICTIONARY (10th

ed. 2014)); see also Cross,

(“[Section 2255(f)(3)] does not say that the movant

must ultimately prove that the right applies to his situation; he need only claim the benefit of a

right that the Supreme Court has recently recognized. An alternative reading would require that

we take the disfavored step of reading ‘asserted’ out of the statute.”). Running the limitation

period from when the Supreme Court recognized the “right asserted,” as the Seventh Circuit

concluded, attaches significance to how a petitioner styles his claim. If the petitioner seeks the

benefit of a right purportedly recognized by the Supreme Court within the preceding year, the

petition is timely.

Although timeliness depends on only the right asserted, petitioners will not be able to

flood the courts with frivolous assertions of newly recognized rights, as the Tenth Circuit feared.

See Greer,

(“Mr. Greer’s interpretation of Snyder would require this court to

find that, no matter what the underlying claim, any petitioner can avoid AEDPA’s clear time

limits simply by invoking a right newly recognized by the Supreme Court.”). While a motion

will be timely if filed within a year from the date “on which the right asserted was initially

recognized by the Supreme Court,” this motion may be summarily dismissed if the right has not

been, in fact, either “newly recognized by the Supreme Court” or “made retroactively applicable

to cases on collateral review.” Dodd,

. That the second clause does not affect

timeliness does not mean it has no role to play.

15 Although, as noted, the D.C. Circuit has not addressed this precise question, assessing

timeliness by the right asserted comports with that court’s warning not to conflate § 2255’s

preliminary forms of review with merits review. Indeed, the D.C. Circuit, on review of a motion

for certification to file a successive § 2255 motion, which certification is proper only upon a

prima facie showing that the motion contains “a new rule of constitutional law,” rebuffed the

government’s argument that, because the petition “relies on an extension of Graham [v. Florida,

(2010)],” the petition does not contain a new rule of constitutional law. In re

Williams,

(D.C. Cir. 2014). The Court explained that “the government’s

argument that we should refuse certification of [petitioner’s] Graham motion goes to the merits

of the motion, asking us in effect to make a final determination of whether the holding in

Graham will prevail for [petitioner].”

“[A] review of the merits at [the certification] stage is

not required.” Id.; see also United States v. Charles Booker,

(D.D.C.

2017) (“As Booker correctly notes, the government’s position conflates (1) authorization to file a

second or successive motion under Section 2255(h), (2) the time bar under Section 2255(f)(3),

and (3) the merits of the motion.”).

Hammond asserts that Johnson guarantees the right not to have a sentence fixed by a

mandatory, but vague, definition of “crime of violence.” Def.’s Supp. § 2255 Mot. at 2–3, 9;

Def.’s Reply at 10–11. As noted, Johnson was decided on June 26, 2015 and Hammond’s

abridged motion was filed on June 20, 2016. Def.’s § 2255 Mot. Thus, the motion to vacate is

timely.

Of course, as Dodd explains, Hammond has not met all § 2255(f)(3) requirements just

because his motion is timely. Hammond still must establish that the claimed right “has been

newly recognized by the Supreme Court and made retroactively applicable to cases on collateral

16 review.”

(f)(3); see also Dodd,

. In this case, § 2255(f)(3)’s

independent conditions sufficiently overlap with the merits that discussion of those conditions is

reserved for the merits portion of the opinion.

2. Procedural Default

The second procedural hurdle that the government constructs is procedural default. “The

procedural default rule generally precludes consideration of an argument made on collateral

review that was not made on direct appeal, unless the defendant shows cause and prejudice.”

United States v. Hughes,

(D.C. Cir. 2008). Cause for default exists, at a

minimum, “where a constitutional claim is so novel that its legal basis is not reasonably available

to counsel … .” Reed v. Ross,

(1984). At least three circumstances demonstrate

novelty: (1) the Supreme Court explicitly overrules its own precedent; (2) the Supreme Court

changes course on a “longstanding and widespread practice to which [the Supreme Court had]

not spoken, but which a near-unanimous body of lower court authority has expressly approved”;

and (3) the Supreme Court disapproves of a once-sanctioned practice.

at 17 (quoting United

States v. Johnson,

(1982)). For prejudice, a petitioner “must at least

demonstrate that ‘there is a reasonable probability that, but for [the errors], the result of the

proceeding would have been different.’” United States v. Pettigrew,

(D.C.

Cir. 2003) (quoting United States v. Dale,

, 1056 n.3 (D.C. Cir. 1998)) (emphasis

and alternations in original). Prejudice analysis assumes the existence of an error.

.

Hammond did not appeal his conviction or sentence. Consequently, the government

suggests, Hammond has procedurally defaulted the argument he now raises. Gov’t’s Opp’n at

11–12. Moreover, Hammond cannot establish cause for the default, the government insists,

because “[f]utility cannot constitute cause if it means simply that a claim was ‘unacceptable to

17 that particular court at that particular time.’”

at 12 (quoting Bousley v. United States,

(1998)). Nor can Hammond establish prejudice, according to the government, because

the right he asserts has not been made retroactive.

Hammond responds in two ways. First,

procedural default does not apply to sentence-specific challenges. Def.’s Reply at 3–6. Second,

cause and prejudice exist here.

at 6–10.

Hammond marshals no precedent supporting his first argument, but draws from

principles that have informed procedural default—primarily, judicial economy and finality—and

urges that they are ill fit as reasons against reopening a sentence. See id. at 4 (“When an error at

sentencing is at issue, however, the problem of finality is lessened, for a resentencing is nowhere

near as costly or as chancy an event as a trial.” (quoting United States v. Saro,

(D.C. Cir. 1994)));

at 5–6 (“‘[T]he cost of correction is so small’ because ‘[a] …

resentencing, after all, doesn’t require that a defendant be released or retried but simply allows

the district court to exercise its authority to impose a legally permissible sentence.” (quoting

United States v. Sabillon-Umana,

(10th Cir. 2014))). Resolving

Hammond’s sweeping proposition is unnecessary because the cause-and-prejudice standard is

met and that alone is sufficient.

The constitutional right Johnson vindicated was unforeseeable: “[N]o one—the

government, the judge, or the appellant—could reasonably have anticipated Johnson.” United

States v. Redrick,

(D.C. Cir. 2016). Sure enough, Johnson overruled two of

the Supreme Court’s prior rulings.

(“Our contrary holdings in James [v.

United States,

(2007)] and Sykes [v. United States,

(2011)] are

overruled.”). Thus, Hammond’s petition comfortably sits within Reed’s first example of novelty.

Moreover, the prejudice visited upon Hammond is plain. Hammond was sentenced to 115

18 months’ imprisonment for the firearm conviction, to run consecutively with a 240-month

sentence on the armed robbery conviction, based on a mandatory Guidelines range of 92 to 115

months’ imprisonment. Judgment, SOR, at 6. Hammond claims that if just one of his prior

convictions does not qualify as a crime of violence, his Guidelines range for the firearm

conviction is 77 to 96 months’ imprisonment, and his overall consecutive sentence should be

reduced. Def.’s Supp. § 2255 Mot. at 6, 10. The government does not contest the calculation.

Thus, if Hammond’s Johnson argument about the mandatory Guidelines’ residual clause is right,

which must be assumed for prejudice purposes, his sentence, in all likelihood, is too long.

Judges on this court, including the undersigned, universally have rejected the

government’s repeated effort to foreclose through procedural default habeas motions seeking the

benefit of Johnson. See, e.g., United States v. Hammond, No. 92-cr-471 (BAH),

, at *10–11 (D.D.C. Nov. 28, 2018) (Howell, C.J.) (rejecting procedural default

argument for post-Johnson § 2255 motion); United States v. West,

, 229 n.4

(D.D.C. 2018) (Leon, J.) (same); United States v. Taylor,

, 135–36 (D.D.C.

2017) (Kollar-Kotelly, J.) (same); United States v. Wilson,

(D.D.C.

2017) (Huvelle, J.) (same); United States v. Brown,

(D.D.C. 2017)

(Sullivan, J.) (same); Charles Booker, 240 F. Supp. 3d at 170–71 (Friedman, J.) (same). Nothing

about this case justifies different treatment.

In sum, neither of the government’s two proposed procedural defects bars review of

Hammond’s § 2255 motion. This motion to vacate will succeed or fail on its merits, the matter

to which the Court now proceeds.

B. Hammond’s Right to Resentencing

Clearing the procedural hurdles means only that Hammond’s motion may be resolved on

the merits. To succeed on the merits, Hammond must show (1) that Johnson itself requires 19 invalidating sentences enhanced pursuant to a mandatory application of the Guidelines’ residual

clause and (2) that the prior convictions subjecting Hammond to an enhanced sentence do not

qualify as crimes of violence under either the Guidelines elements clause or enumerated-felonies

clause. As discussed below, Hammond has satisfied only the first of those required showings.

1. Does Johnson Apply to the Mandatory Guidelines’ Residual Clause?

Ordinarily, a § 2255 motion may be granted “[i]f the court finds that … the sentence

imposed was not authorized by law or otherwise open to collateral attack, or that there has been

such a denial or infringement of the constitutional rights of the prisoner as to render the judgment

vulnerable to collateral attack.”

(b). For Hammond, however, relief depends

on whether striking down his sentence would enforce the right recognized in Johnson or would

announce a new right. That Hammond has such a heavy lift is the consequence of his petition

being timely under only § 2255(f)(3), which requires withholding relief from otherwise timely

motions unless the petitioner claims the benefit of a right that “has been newly recognized by the

Supreme Court and made retroactively applicable to cases on collateral review.” Id.

§ 2255(f)(3); see also Dodd,

.

Arguments about Johnson’s scope, which the parties raised as relevant to timeliness, are

properly directed to this question. Hammond maintains that Johnson “announced the right not to

have a sentence fixed by an unconstitutionally vague residual clause,” Def.’s Reply at 10,

leaving “no doubt that Johnson rendered the residual clause of the mandatory Guidelines

unconstitutionally void for vagueness,” Def.’s Supp. § 2255 Mot. at 13. By contrast, the

government posits that Johnson is about the ACCA, see Gov’t’s Opp’n at 15–16, leaving open

20 the constitutionality of sentences enhanced under the mandatory Guidelines’ residual clause, id.

at 16.9

Johnson itself is proper place to begin. In that case, the Supreme Court invalidated

sentences enhanced pursuant to the ACCA’s residual clause as violative of Due Process because

that clause’s indeterminacy “denies fair notice to defendants and invites arbitrary enforcement by

judges.”

. The denial of fair notice occurs whenever a law “ties the judicial

assessment of risk to a judicially imagined ‘ordinary case’ of a crime,” and increases punishment

based on an indecipherable “serious potential risk” standard.”

.

Mandatory Guidelines sentences under the residual clause share each fault cited by the

Supreme Court, according to Hammond. Def.’s Supp. § 2255 Mot. at 10–12. Like the ACCA,

the mandatory Guidelines’ fixed sentences. Id. at 10. Additionally, the mandatory Guidelines

implicate Johnson’s twin concerns. Id. at 11–12. Hammond is right on each point. First, the

mandatory Guidelines had the force of law. Booker, 543 U.S. at 233–34. Second, the mandatory

Guidelines’ residual clause assessed risk against the hypothetical ordinary case. United States v.

Sheffield,

(D.C. Cir. 2016) (“[W]e apply the ACCA standard to determine

whether an offense qualifies as a crime of violence under section 4B1.2” (quoting In re Sealed

Case,

(D.C. Cir. 2008))). Third, the mandatory Guidelines enhanced

sentences when the past crime posed “serious potential risk,” language identical to the ACCA’s

unworkable standard. See id. at 312; see also Cross,

(ruling that the same faults

identified in Johnson “inhere in the residual clause of the guidelines”); Moore,

9 The government also argues that even if Johnson extends beyond the ACCA, Johnson’s right has not been made retroactive to non-ACCA cases. Gov’t’s Opp’n at 20–25. Yet, in Welch v. United States,

(2016), the Supreme Court made Johnson retroactive. Although the government casts Welch, like Johnson, as limited to the ACCA, see Gov’t’s Opp’n at 8, 19, Welch ruled that “Johnson is thus a substantive decision and so has retroactive effect.”

. Therefore, Welch reaches as far as Johnson. Analyzing whether Welch applies to Hammond is no different than analyzing whether Johnson applies to Hammond.

21 (“Although the residual clause in the pre-Booker guidelines is not quite ACCA … it is not clearly

different in any way that would call for anything beyond a straightforward application of

Johnson.”). Thus, Johnson completes all the relevant constitutional legwork.

Still, the government argues that Johnson, which makes no mention of the Guidelines, is

ACCA specific. Gov’t’s Opp’n at 15. Noting the absence of a Guidelines reference in Johnson

featured in the analysis of four of the circuits that denied a motion like Hammond’s.10 See

Blackstone, 903 F.3d at 1026–27 (“Neither Johnson nor Welch mentioned the mandatory or

advisory Sentencing Guidelines.”); Greer,

(“[N]othing in Johnson speaks to the

issue.”); Brown,

(“ Johnson dealt only with the residual clause of ACCA—a

federal enhancement statute … . Johnson did not discuss the mandatory Sentencing Guidelines’

residual clause at issue here … .”); Raybon,

(“ Johnson[]’s holding was limited

to the ACCA and did not extend to other legal authorities such as the Sentencing Guidelines.”

(internal quotation marks omitted)). Johnson’s silence as to the Guidelines, however, is

unremarkable. The constitutional question came to the court packaged as an ACCA case.

Commenting on the mandatory Guidelines would have been a departure from the context of the

case. Yet, § 2255(f)(3) speaks in terms of rights. Congress presumably used “right” “because it

10 Two of those circuits—the Ninth and Tenth—also expressed leeriness of running afoul of the Supreme Court’s repeated admonitions that lower courts must not “determin[e] what rights have been recognized under AEDPA.” Blackstone,

(citing Lopez v. Smith,

(2014); Nevada v. Jackson,

(2013)); see also Greer,

(“To entertain such an argument would undermine Congress’s intent in passing AEDPA and the ‘interests of comity and finality’ underlying federal habeas review.” (quoting Teague, 489 U.S. at 308)). Yet, each rebuke those circuits cite enforced

(d)(1)’s limitation of federal relief to cases in which a state court unreasonably applied “clearly established Federal law, as determined by the Supreme Court of the United States.” See Lopez, 135 S. Ct. at 3–4; Jackson, 569 U.S. at 508–09; Teague, 489 U.S. at 308. Strict enforcement of what has been “clearly established” for § 2254 is necessary to “prevent[] defendants—and federal courts—from using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.” Renico v. Lett,

(2010); see also Woods v. Donald,

(2015) (“Adherence to these principles serves important interests of federalism and comity. AEDPA’s requirements reflect a presumption that state courts know and follow the law.” (internal quotation marks omitted)). These principles “of federalism and comity,” animating interpretations of § 2254, have limited relevance to § 2255.

22 recognizes that the Supreme Court guides lower courts not just with technical holdings but with

general rules that are logically inherent in those holdings … .” Moore,

.

Indeed, both in and since Johnson, the Supreme Court has illustrated that Johnson is not

ACCA specific. A dissenting opinion in Johnson critiqued the Court’s decision for striking the

ACCA’s residual clause when “[t]here are scores of federal and state laws that employ similar

standards.” Johnson,

(Alito, J., dissenting). Had Johnson been limited to

ACCA, the majority’s easy response to this criticism could have been to say so. Instead, the

response to the dissent’s worry that the Court’s broad rule placed in constitutional doubt “dozens

of federal and state criminal laws,” which rely on phrases like “substantial risk,” was that not all

such laws required gauging risk against imagined crimes and not all such laws injected

uncertainty into what constituted “substantial risk” by giving four vastly different examples of

crimes that meet the threshold—a reference to the enumerated-felonies clause—as the ACCA

did. Johnson,

.

Then, in Beckles, the Supreme Court summarized Johnson’s rule as forbidding “taking

away someone’s life, liberty, or property under a criminal law so vague that it fails to give

ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary

enforcement.” Beckles,

. That rule applies to vague laws that “fix the

permissible sentences for criminal offenses.”

By invaliding the ACCA’s residual clause,

Johnson simply “applied the vagueness rule to a statute fixing permissible sentences.”

Beckles reached a different conclusion for the current Guidelines not because of the shift from

the ACCA to the Guidelines, but because of the shift from laws that bind to standards that guide.

The advisory Guidelines did not trigger “the twin concerns underlying vagueness doctrine”

because “they merely guide the district courts’ discretion.”

.

23 In Dimaya, the Supreme Court considered a constitutional challenge related to the

interplay of immigration and criminal law. Under

(a)(2)(A)(iii), non-citizens are

deportable if convicted of an “aggravated felony.” Aggravated felonies include crimes of

violence “as defined in section 16 of Title 18.”

(a)(43)(F). In turn, § 16 defines

crime of violence to include “any other offense that is a felony and 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.”

(b). Despite textual differences, and the

case’s immigration valence, in Dimaya the Supreme Court held that § 16(b) suffered from the

same constitutional defect as the ACCA’s residual clause.

.

The Supreme Court’s reasoning in reaching that holding is instructive. Section 16(b)’s

residual clause, the Court wrote, combined the same two features that made the ACCA’s residual

clause “constitutionally problematic.”

. Thus, the Supreme Court wrote, “Johnson

effectively resolved the case now before us.”

The ensuing analysis reads like a book report

on Johnson. Indeed, Section III of Dimaya, the heart of the Court’s opinion, cites no case other

than Johnson. See

at 1213–16. To respond to dissenting opinions, the Court simply referred

to Johnson. See

at 1214 n.3 (“Johnson also anticipated and rejected a significant aspect of

Justice Thomas’s dissent in this case. … ”);

at 1215 n.4 (“The Chief Justice’s dissent makes

light of the difficulty of identifying a crime’s ordinary case. In a single footnote, the Chief

Justice portrays that task as no big deal: Just eliminate the ‘atypical’ cases, and (presto!) the

crime’s nature and risk are revealed. … That rosy view—at complete odds with Johnson—

underlies his whole dissent … .”);

(“For anyone who has read Johnson, [Justice

Thomas’s dissent] will ring a bell”). Section 16(b) could be found constitutional only by

“refusing to acknowledge one of the two core insights of [Johnson].”

at 1215 n.4. Section

24 16(b) was found unconstitutional not by extension of Johnson but by enforcement of Johnson. If

the rest of the opinion had not already made that point clear, Dimaya concluded that, “Johnson

tells us how to resolve this case.”

. Surely if the Supreme Court considered the

question presented in Dimaya a matter of enforcing Johnson, the same is true here. The distance

between Dimaya and Johnson is far greater than the distance between this case and Johnson.

Hammond’s comparison to retroactivity law drives home that his motion does not seek to

establish a new rule but only to enforce the new rule already articulated in Johnson. As

Hammond notes, Def.’s Reply at 12, “the retroactivity of [the Supreme Court’s] criminal

procedure decisions turn on whether they are novel.” Chaidez v. United States,

(2013). Applying this standard, the Supreme Court has explained that “a case announces a

new rule if the result was not dictated by precedent existing at the time the defendant’s

conviction became final.”

(quoting Teague, 489 U.S. at 301) (emphasis in original).

Conversely, “a case does not ‘announce a new rule, [when] it [is] merely an application of the

principle that governed’ a prior decision to a different set of facts.” Id. at 347–48 (quoting

Teague, 489 U.S. at 307) (emphasis and alternations in original). In practice, then, a court does

not create a new rule if it only applies a “general standard to yet another factual situation.” Id. at

348–49. Bringing that framework to Hammond’s case, Johnson articulated a new rule that

Hammond merely asks to be applied to a materially indistinguishable circumstance, simply

swapping the ACCA’s residual clause for its mandatory Guidelines’ parallel. Def.’s Reply at

18.11

11 Although new rules are not usually retroactive, Johnson was given retroactive effect because it fit one of the exceptions to the default rule. Welch,

(“Johnson is … a substantive decision and so has retroactive effect under Teague in cases on collateral review.”).

25 The government, as was true for the five circuits finding a petition like Hammond’s

untimely, cites Justice Sotomayor’s concurrence in Beckles, see

n.4

(Sotomayor, J., concurring), in which she wrote that, “[t]he Court’s adherence to the formalistic

distinction between mandatory and advisory rules at least leaves open the question whether

defendants sentenced to terms of imprisonment before our decision in [Booker] … may mount

vagueness attacks on their sentences.” See Gov’t’s Opp’n at 9–10; Blackstone,

;

Green,

; Greer;

; Brown,

; Raybon, 867 F.3d at

629–30. Placing such weight on purportedly “open” questions framed by a concurring or

dissenting Justice in determining what rights the Supreme Court has recognized, might give

those rights radically different shape. Cf. Cross,

(“As a lower court, we are

required to follow the Court’s precedents until the Court itself tells us otherwise. Unless and

until a majority of the Court overrules the majority opinions in Johnson and Dimaya, they

continue to bind us.”). In any event, ascribing Justice Sotomayor’s footnote dispositive

significance is unavailing here given how the Johnson majority responded to the dissent’s

concerns about the decision’s implications for similar laws and the Court’s later opinion in

Dimaya.

Next, the government argues that Johnson cannot apply here because, as Beckles exhibits,

the Guidelines—mandatory or advisory—are not subject to a vagueness challenge. Gov’t’s

Opp’n at 26–29.12 Even sentences imposed under mandatory Guidelines, the government

reasons, differ from the ACCA because the Guidelines always “operate within the statutory

sentencing regime of the offenses of conviction” and an unconstitutional Guidelines calculation

“would not alter the statutory boundaries for sentencing set by Congress for the crime.”

at 27

12 Prior to Beckles, the government had conceded that even the advisory Guidelines’ residual clause was unconstitutionally vague. Gov’t’s Opp’n at 18–19.

26 (quoting In re Griffin,

(11th Cir. 2016)). By contrast, the ACCA “is a

federal statute that alters the statutory sentencing range for a crime.” Id. at 28. While the

government, echoing the Eleventh Circuit, is correct that a career offender sentence under the

mandatory Guidelines could never exceed a statutory maximum, that argument overlooks the

mandatory Guidelines’ effect on the sentencing floor. Setting a mandatory minimum, no less

than setting a mandatory maximum “fix[es] the permissible sentences for criminal offenses.”

Beckles,

. Indeed, “[i]t is indisputable that a fact triggering a mandatory

minimum alters the prescribed range of sentences to which a criminal defendant is exposed. …

And because the legally prescribed range is the penalty affixed to the crime, it follows that a fact

increasing either end of the range produces a new penalty.” Alleyne v. United States,

(2013); see also

(“[T]here is no basis in principle or logic to distinguish

between facts that raise the maximum from those that increase the minimum.”).

Moreover, the government continues, the mandatory Guidelines did not function as a law

because even “[u]nder the pre-Booker Guidelines, courts had authority to depart from the

prescribed range in exceptional cases.” Gov’t’s Opp’n at 29 (citing U.S.S.G. §§ 4A1.3, 5K2.0).

The government’s argument ignores Booker, which ruled that although the mandatory Guidelines

were not statutes, the Guidelines still were “binding on judges” and imbued with “the force and

effect of laws.” Booker,

. While sentencing judges had some authority to depart

from the mandatory Guidelines, “the availability of a departure in specified circumstances does

not avoid the constitutional issue.”

.13 Of course, the constitutional issue arose only

because the Guidelines were mandatory.

.

13 Notably, “even statutory minimum sentences are not exempt from departures, if, for instance, the government files a substantial-assistance motion,

(e), or the court finds that the defendant is entitled to the statutory safety valve,

§ 3553(f).” Cross,

.

27 Finally, Hammond persuasively asserts that if § 2255(f)(3) requires defendants to wait

until the Supreme Court takes a case, which is indistinguishable from a defendant’s, defendants

will sit on ripe and known claims. Def.’s Reply at 25–26. Such a result would be at odds with

AEDPA’s statute of limitation, which prioritizes finality and expedient resolution of meritorious

claims. See Mayle v. Felix,

(2005) (“Congress enacted AEDPA to advance

the finality of criminal convictions.”); United States v. Hicks,

(D.C. Cir. 2002)

(assessing Federal Rule of Civil Procedure 15’s applicability to habeas petitioners in light of

“Congress’ decision to expedite collateral attacks by placing stringent time restrictions on § 2255

motions”).

Johnson’s rule—the right not to have a sentence fixed by an indeterminate and wide-

ranging residual clause—instructs that a mandatory Guidelines sentence enhanced through

application of the residual clause is unconstitutional. Hammond’s § 2255 motion does not ask

the Court to articulate a new rule of constitutional law, just to enforce a rule already established.

2. Is Hammond still a career offender?

Although the mandatory Guidelines’ residual clause is unconstitutionally vague,

Hammond’s enhanced sentence is constitutional if his Maryland conviction for armed robbery

with a deadly weapon and his federal bank robbery conviction satisfy either of the Guidelines’

two other definitions of crime of violence. Indeed, as Hammond concedes, United States v.

Redrick,

(D.C. Cir. 2016), resolves that the Maryland conviction meets the

elements clause’s definition of crime of violence. Def.’s Supp. § 2255 Mot. at 33. Thus, the

Court’s analysis is limited to whether Hammond’s federal bank robbery conviction, under

(a), remains a qualifying crime of violence.

28 a) Federal Bank Robbery

(a) provides that:

Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny— Shall be fined under this title or imprisoned not more than twenty years, or both.

Section 2113(a) appears to be divisible, which is to say the statute describes distinct

crimes. See Mathis v. United States,

(2016) (explaining meaning of

divisible statute); see also United States v. Watson,

(9th Cir. 2018) (“[Section]

2113(a) does not contain one indivisible offense. Instead, it contains at least two separate

offenses, bank robbery and bank extortion.”); United States v. McBride,

(6th

Cir. 2016) (“Section 2113(a) seems to contain a divisible set of elements … .”). Section

2113(a)’s divisibility might, in some cases, require review of “a limited class of documents … to

determine what crime, with what elements, a defendant was convicted of.” Mathis,

. Such review is not necessary here because, although neither party is explicit, each treats

Hammond to have been convicted of taking property “by force and violence, or by intimidation.”

b) The Categorical Approach to Crimes of Violence

The government claims that Hammond’s bank robbery conviction under § 2113(a) is a

crime of violence under the elements clause, which defines crime of violence to include “any

offense … that has as an element the use, attempted use, or threatened use of physical force

against the person of another.” U.S.S.G. § 4B1.2(a)(1) (2003). Courts employ the “categorical

29 approach” to assess whether a prior conviction fits that definition. United States v. Brown,

(D.C. Cir. 2018). In other words, the “analysis looks only to the elements of the

crime to determine whether, by its terms, commission of the crime inherently (i.e., categorically)

requires” force.

Force in this context “means violent force—that is, force capable of causing

physical pain or injury to another person.” Curtis Johnson v. United States,

(2010) (emphasis in original); see also Brown,

(applying Curtis Johnson’s

definition of “force” to the Guidelines’ elements clause). Thus, “[i]f it is possible to commit the

crime without the use, attempted use, or threatened use of violent force, the offense-level

enhancement does not apply, regardless of whether the defendant’s actual conduct in

perpetrating the offense would individually qualify.” Brown,

(citing Mathis,

). Moreover, the Supreme Court has interpreted

(a), a provision

nearly identical to the Guidelines’ elements clause, to require a mental state (or, a mens rea) for

the use of force that is more than “negligent or merely accidental.” Leocal v. Ashcroft,

(2004).

Against this backdrop, Hammond makes two arguments for why his conviction under

§ 2113(a) is not categorically a crime of violence. First, the crime can be committed without the

use, attempted use, or threatened use of violent force. Second, the crime can be committed

without the intentional use, attempted use, or threatened use of violent force. Those arguments

are taken in turn.

c) Does

(a) Require the Threatened Use of Violent Force?

Hammond contends that because § 2113(a) prohibits takings by “intimidation,” federal

bank robbery can be accomplished without even the threatened use of violent force. Def.’s Supp.

§ 2255 Mot. at 30. Intimidation, by Hammond’s account, “occurs when ‘an ordinary person in

30 the [victim’s position] reasonably could infer a threat of bodily harm from the defendant’s acts.”

Id. (quoting United States v. Woodrup,

(4th Cir. 1996) (emphasis and alteration

in original)). Conduct that reasonably communicates a threat of bodily harm, Hammond

maintains, is distinct from conduct that threatens violent force.

at 30–31.

Yet, every circuit court but the D.C. Circuit, which has not addressed the subject, has

ruled that intimidation—or conduct reasonably causing fear of bodily harm—is conduct that

threatens violent physical force. See United States v. Ellison,

(1st Cir. 2017);

United States v. Dykes,

, 45 (2d Cir. 2018); United States v. Wilson,

,

84–85 (3d Cir. 2018); United States v. McNeal,

(4th Cir. 2016); United States

v. Brewer,

, 715–16 (5th Cir. 2017); United States v. McBride,

, 295–

96 (6th Cir. 2016); United States v. Campbell,

(7th Cir. 2017); United

States v. Harper,

, 626–27 (8th Cir. 2017); United States v. Watson,

(9th Cir. 2018); United States v. McCranie,

(10th Cir. 2018); In re Sams,

(11th Cir. 2016).14 Indeed, “intimidation,” as it appears in § 2113(a),

“simply means the threat of the use of force” and “the degree of ‘force’ threatened must be

violent force.” McNeal,

; accord Ellison,

; Wilson, 880 F.3d at 84–

95; Brewer,

; McBride,

; Campbell,

; Harper, 869

F.3d at 626–27; Watson,

; McCranie,

; In re Sams,

Citing three district court cases from the Western District of Washington, Doriety v. United States, No. 16- cv-924 (W.D. Wa. Nov. 10, 2016), Knox v. United States, 16-cv-5502,

(W.D. Wa. Jan. 24, 2017), and Bolar v. United States, No. 09-cr-293,

(W.D. Wa. Apr. 28, 2017), Hammond cites a “split” as to “whether bank robbery requires the threat of violent force.” Def.’s Reply at 34 (emphasis in original). Setting aside that no split exists and that the Ninth Circuit, since issuance of these three cited district court decisions, has ruled that federal bank robbery is a crime of violence, see Watson,

, the three cited cases are unpersuasive for the reasons that Judge Bates recently explained when presented with whether § 2113(a) describes a crime of violence, see United States v. Carr,

, 284 n.14 (D.D.C. 2018) (explaining that the cited district court cases, respectively, ignored United States v. Carter,

(2000), addressed § 2113(a)’s second paragraph, and imagined unrealistic ways in which a crime might be committed).

31 1239. The persuasive reasoning in these circuit decisions presents no reason to depart from their

interpretation of “intimidation.”

Rather than grappling with the uniform precedent, only some of which post-dates

Hammond’s briefing, Hammond cites cases which, in his view, exemplify the space between

threatening bodily harm and threatening violent force. Def.’s Supp. § 2255 Mot. at 30–31;

Def.’s Reply at 34–35. Hammond presents appellate cases that sustained convictions under

§ 2113(a) for conduct such as jumping on a bank counter, opening a cash drawer, and grabbing

money, see United States v. Kelley,

(11th Cir. 2005), twice ordering a teller

to put money in a bag, see United States v. Higdon,

(5th Cir. 1987), and

saying to a teller that “if you want to go to heaven, you’ll give me the money,” but without

making “any sort of movement toward the teller,” see United States v. Yockel,

(8th Cir. 2003). Hammond, however, has watered down the facts of those cases. In Kelley, the

Eleventh Circuit described the defendant’s offense conduct as “slam[ing] onto the teller counter

hard enough that [one victim] heard the noise from another room” while a second victim “was

within arm’s length” of the defendants “as they removed cash.” Kelley,

.

There, the victims reasonably perceived a threat of violence.

As for Higdon, the Fifth Circuit

subsequently considered that case to exemplify that “intimidation in the bank-robbery context is

inherently tied to a threatened use of force.” Brewer,

. Specifically, the Fifth

Circuit considered the defendant’s “insistent demands that the tellers empty their cash drawers” a

“scarcely-veiled threat of some unarticulated reprisal.”

(quoting Higdon,

).

Moreover, surveillance photos depicted that the defendant had an “aggressive, threatening

presence as he lean[ed] over the teller counter and, with his right hand, demand[ed] compliance

by his gestures.”

(quoting Higdon, 832 F.2d at 315–16). In Higdon, the facts confirmed the

32 defendant’s implicit threat of violent force.

Likewise, the Eighth Circuit later confirmed that

Yockel was consistent with the view that “[a] threat of bodily harm requires a threat to use

violent force because it is impossible to cause bodily injury without force capable of producing

that result.” Harper,

.

Beyond the real cases, Hammond hypothesizes ways to communicate a threat of physical

harm short of threatening violent force, such as “threatening to poison another, threatening to

give someone the flu by coughing on them, or even worse, threatening to expose someone to a

deadly disease.” Def.’s Supp. Mot. § 2255 at 33. These “hypotheticals are too far-fetched to

place federal bank robbery outside the ambit of § 4B1.2(a)(1).” United States v. Carr,

(D.D.C. 2018); see also Redrick, 841 F.3d at 484–85 (“The Supreme Court in

other cases applying the categorical approach has cautioned against excessive ‘legal

imagination.’”).

Finally, Hammond draws a parallel between § 2113(a) and Connecticut’s third-degree

assault statute, which the First Circuit recently reviewed against

(a)’s elements

clause. See Whyte v. Lynch,

(1st Cir. 2015). Connecticut’s assault statute did not

describe a crime of violence even though an element of the crime was the “intent to cause

physical injury to another person” because the government offered no precedent that state courts

had interpreted “physical injury” to mean anything more than “impairment of physical condition

or pain.”

. “Common sense, moreover, suggest[ed] there exists a realistic probability

that … Connecticut can punish conduct that results in ‘physical injury’ but not require the ‘use of

physical force.’”

Whyte, however, is immaterial. When a federal court determines whether a

state conviction meets a federal definition of crime of violence, the federal court must accept the

33 state’s interpretation of the criminal statute.

at 466–67. How Connecticut defines “intent to

cause physical injury to another” says nothing about how to interpret a federal statute.

As every circuit has ruled, intimidation necessitates a threat of violent force.

d) Does

(a) Meet the Elements Clause’s Mens Rea Requirement?

Next, Hammond insists that because federal bank robbery does not require intentional

intimidation, § 2113(a) criminalizes conduct that can be committed with a less culpable mental

state than is required by the Guidelines’ elements clause. Hammond’s argument fails for several

reasons.

In Carter v. United States,

(2000), the Supreme Court ruled that

(a), which does not contain an express mens rea requirement, is a “general intent” crime.

. As such, a defendant must have “possessed knowledge with respect to the actus reus

of the crime (here, the taking of property of another by force and violence or intimidation)” to be

guilty.

(emphasis added). Hammond understands the elements clause’s definition of crime

of violence as applicable only to convictions requiring the intentional use of force. Def.’s Supp.

§ 2255 Mot. at 24–25 (citing Leocal,

). Leocal construed

(a)’s

definition of crime of violence, which is nearly identical to the Guidelines’ elements clause, to

“most naturally suggest[] a higher degree of intent than negligent or merely accidental conduct.”

543 U.S. at 9. Leocal did not hold, however, that knowledge of the use of force, or threatened

use of force, was inadequate. See Campbell,

(recognizing that Leocal never held

that “general intent crimes could not constitute crimes of violence”). Likewise, none of the

circuit cases cited by Hammond, see Def.’s Supp. § 2255 Mot. at 25, instruct that a crime of

violence must, in all instances, have as an element the intentional use of force. See United States

v. Hernandez-Hernandez,

(5th Cir. 2016) (ruling that the defendant’s prior

34 conviction categorically involved the intentional use of force); United States v. Dixon,

(9th Cir. 2015) (ruling that the defendant’s prior conviction was not a crime of

violence because the crime could be committed through accidental use of force); United States v.

Armijo,

(10th Cir. 2011) (ruling that the defendant’s prior crime was not a

crime of violence because the crime could be committed through reckless use of force); United

States v. King,

(10th Cir. 1992) (considering only whether conspiring to

commit a violent felony is equivalent to threatening to use force). Thus, Hammond’s argument

that, as a matter of precedent, the elements clause’s definition of crime of violence excludes

crimes that require only the knowing use of force is unfounded.

Hammond offers no principle that justifies excluding from the elements clause’s

definition of crime of violence those crimes committed through the knowing use of force. Here

too, all circuit courts to have considered the question are lined up against Hammond. See, e.g.,

Ellison, 866 F.3d at 39–40; Wilson, 880 F.3d at 87–88; McNeal, 818 F.3d at 155–56; McBride,

; Campbell,

; Watson,

; United States v. Horsting,

(11th Cir. 2017). Those decisions are persuasive. Indeed, the Supreme

Court interpreted § 2113(a) as a general intent crime because that mens rea sufficiently

“separate[d] wrongful conduct from ‘otherwise innocent conduct.’” Carter,

(quoting United States v. X-Citement Video, Inc.,

(1994)). Carter confirms that

including § 2113(a) within the elements clause’s definition of crime of violence does not risk

enhancing a sentence for the innocent use of force.

Still, Hammond contends that § 2113(a) criminalizes the negligent use of force. Def.’s

Supp. § 2255 Mot. at 24–26; Def.’s Reply at 30–34. Hammond deduces as much because a

defendant may be found guilty under the statute “even though he did not intend to put another in

35 fear of injury,” “as long as ‘an ordinary person in the [victim’s] position reasonably could infer a

threat of bodily harm from the defendant’s acts.’” Def.’s Supp. § 2255 Mot. at 25, 26 (quoting

United States v. Woodrup,

(4th Cir. 1996)); see also Def.’s Reply at 30 (“This

means that ‘intimidation’ is satisfied under the bank robbery statute whether or not the defendant

actually intended the intimidation, as long as an ordinary person in the victim’s position

reasonably could infer a threat of bodily harm from the defendant’s acts.” (citing Kelley,

; United States v. Dawson, No. 03-cr-410,

, at *3 (D. Or. Feb. 27,

2018))).

Hammond’s opening brief fails to cite Carter, which is explicit that § 2113(a) is a general

intent crime, necessitating that the defendant possessed at least knowledge of his intimidating

conduct. Carter,

. Indeed, the First Circuit, discussing the same cases that

Hammond insists support his conclusion, noted that the underlying rationale for each case

ignores Carter. Ellison,

, 39 n.4. In reply, Hammond acknowledges Carter, see

Def.’s Reply at 32, but reasons that because intimidation is judged from the objective victim’s

vantage point, the knowing use of force is no different than the negligent use of force. Def.’s

Reply at 30–33. This reasoning is not persuasive. As Judge Bates recently explained, “a jury

cannot peer into a defendant’s mind to determine what he knew at the time of a robbery.” Carr,

314 F. Supp. 3d at 280–81. Thus, a defendant’s mental state is inferred “from the surrounding

circumstances—including whether his actions were sufficient to intimidate a reasonable bank

teller.”

at (citing Horsting,

). Application of “an objective standard to

determine whether a jury could have inferred knowledge from the defendant’s actions does not

ipso facto reduce the applicable mental state requirement to recklessness or negligence.”

Indeed, the Model Penal Code reflects that different types of conduct bespeak different mental

36 states.

at 281–82 (explaining that under Model Penal Code § 2.02(d) “a person acts with

criminal negligence when she ‘should be aware of a substantial and unjustifiable risk that [an

element of an offense] exists or will result from [her] conduct’” but that under § 2.02(b) “a

person acts knowingly with respect to a result when she ‘is aware that it is practically certain that

[her] conduct will cause [that] result’”).

Finally, contrary to Hammond’s argument, Def.’s Reply at 32–33, Elonis v. United

States,

(2015), does not require a different result. In Elonis, the Supreme Court

reviewed a conviction under

(c), which outlaws transmitting in interstate

commerce “any threat to kidnap any person or any threat to injure the person of another,” but

which, like § 2113(a), does not expressly provide a mens rea requirement. Elonis,

. The district court had instructed the jury to convict if the defendant “intentionally ma[de]

a statement in a context or under such circumstances wherein a reasonable person would foresee

that the statement would be interpreted” as a threat.

. Yet, the Supreme Court vacated

the conviction because the district court’s instruction, by focusing “solely on how [the

defendant’s statements] would be understood by a reasonable person” had “reduce[d] culpability

on the all-important element of the crime to negligence” and eliminated “the conventional

requirement for criminal conduct—awareness of some wrongdoing.”

at 2011 (quoting

Staples v. United States,

, 606–07 (1994)).

On the path to that holding, however, the Supreme Court specifically distinguished

§ 2113(a) as a statute that, unlike § 875(c), did not require proof of intent to avoid the risk of

criminalizing negligent conduct. Id. at 2010. For § 2113(a), “the concerns underlying the

presumption in favor of scienter are fully satisfied” by “a general requirement that a defendant

act knowingly” because “a forceful taking—even by a defendant who takes under a good-faith

37 claim of right—falls outside the realm of … ‘otherwise innocent’ conduct.” Id. (quoting Carter,

530 U.S. at 269–70). On the other hand, a statute such as § 875(c), or “a statute similar to

Section 2113(a) that did not require forcible taking,” must impose an intent requirement to avoid

“the risk of punishing seemingly innocent conduct.” Id. (quoting Carter,

).

Indeed, for such a statute, “the crucial element separating legal innocence from wrongful

conduct” is the threatening nature of the communication.

at 2011 (quoting X-Citement Video,

Inc.,

). Thus, Elonis’s reasoning is explicitly limited to statutes that criminalize

pure threats. See Wilson,

(“Wilson’s attempt to extend Elonis’s reasoning to

§ 2113(a) is misguided.”); United States v. Williams,

, 829–30 (7th Cir. 2017) (“The

reasoning of Elonis does not extend to bank robbery, where the concerns about innocent conduct

and free speech in Elonis do not apply. Williams’s argument regarding intent is imported from,

and better suited to, statutes criminalizing pure threats. Bank robbery is caused by intentional

acts, not by negligence or accidental conduct.”).

Section 2113(a) requires that the defendant had at least knowledge that his conduct would

be intimidating. The Guidelines’ elements clause demands no more.

***

Johnson prohibits enhancing any sentence based on the mandatory Guidelines’ residual

clause. Hammond’s prior Maryland conviction for armed robbery with a deadly weapon and

federal conviction for bank robbery, however, are crimes of violence under the Guidelines’

elements clause because each requires at least the knowing use, attempted use, or threatened use

of violent physical force. Thus, Hammond’s sentence does not implicate the rule enunciated in

Johnson, and is constitutional.

38 IV. CONCLUSION

For the foregoing reasons, Hammond’s Motion Under

to Vacate, Set

Aside, or Correct Sentence is denied.

An Order consistent with this Memorandum Opinion will be filed contemporaneously.

Date: December 7, 2018

__________________________ BERYL A. HOWELL Chief Judge

39