1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 * * *

7 UNITED STATES OF AMERICA, Case No. 2:16-CR-363 JCM (GWF)

8 Plaintiff(s), ORDER

9 v.

10 NOAH PATRICK FIELDS,

11 Defendant(s).

12 13 Presently before the court is petitioner Noah Patrick Fields’ motion to vacate, amend, or 14 correct his sentence pursuant to

. (ECF No. 40). The government filed no response, and the time to do so has passed. 15 I. Background 16 Petitioner is currently incarcerated in Victorville USP. (ECF No. 40). On May 15, 2017, 17 petitioner pled guilty to 1) aiding and abetting Hobbs Act robbery (“count one”), and 2) use of a 18 firearm during and in relation to “a crime of violence,” specifically the aiding and abetting 19 Hobbs Act robbery, in violation of

(c)(1)(A) (“count two”). (ECF Nos. 26, 28, 20 29). 21 On August 24, 2017, this court sentenced petitioner to 51 months of imprisonment on 22 count one and a consecutive sentence of 84 months imprisonment on count two. (ECF Nos. 31, 23 33). Petitioner was also sentenced to a 5-year term of supervised release. (Id.). In light of the intervening change in law of United States v. Davis,

(2019) 24 (“Davis”), petitioner seeks the vacatur of his § 924(c) conviction under

(a). 25 II. Legal Standard 26 Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the 27 court imposed the sentence “in violation of the Constitution or laws of the United States.” 28

(a). Relief pursuant to § 2255 should be granted only where “a fundamental 1 defect” caused “a complete miscarriage of justice.” Davis v. United States,

, 345 2 (1974); see also Hill v. United States,

(1962). 3 Limitations on § 2255 motions exist because the movant “already has had a fair opportunity to present his federal claims to a federal forum,” whether or not he took advantage of 4 the opportunity. United States v. Frady,

(1982). Section 2255 “is not 5 designed to provide criminal defendants multiple opportunities to challenge their sentence.” 6 United States v. Johnson,

(9th Cir. 1993). Furthermore, a petitioner’s claims 7 are procedurally barred if they could have been raised on direct appeal are not. Massaro v. 8 United States,

(2003); Bousley v. United States,

(1998). 9 However, procedural default is excused if the defendant can show cause and prejudice, or actual 10 innocence.

11 III. Discussion 12 This court grants petitioner’s timely motion. Per the local rules, “[t]he failure of an opposing party to include points and authorities in response to any motion constitutes a consent 13 to granting the motion.” LCR 47-3. On June 24, 2020, this court set a scheduling order with a 14 response deadline of July 15, 2020. (ECF No. 41). The government has not responded. 15 Furthermore, this court has reviewed the record in this matter and finds petitioner’s 16 motion meritorious. On June 24, 2019, the Supreme Court held in Davis that § 924(c)’s residual 17 clause is unconstitutionally vague in violation of the Due Process Clause.

(2019). In light of Davis, the crime of “aiding and abetting Hobbs Act robbery”—as charged in 19 count one—categorically fails to qualify as a “crime of violence.” Thus, petitioner’s conviction 20 under count two cannot be sustained due to the fundamental defect uncovered by the foregoing 21 substantive change in law. See Davis v. United States,

(1974) (ruling that relief pursuant to § 2255 should be granted only where “a fundamental defect” caused “a 22 complete miscarriage of justice”); see also Teague v. Lane,

(1989) (applying 23 decisions retroactively to cases on collateral review if “substantive”). 24 Without a hearing, this court vacates petitioner’s conviction of 84 months imprisonment 25 for count two and reimposes the same prior sentence of 51 months of imprisonment for count 26 one along with a supervised release term of 5 years. 27 . . . 28 . . . 1} IV. Conclusion 2 Accordingly, 3 IT IS HEREBY ORDERED, ADJUDGED, and DECREED that petitioner’s motion to vacate, set aside, or correct sentence pursuant to

(ECF No. 40) be, and the 5 same hereby is, GRANTED. IT IS FURTHER ORDERED that petitioner’s consecutive sentence of 84 months ° imprisonment for count two—use of a firearm during and in relation to “a crime of violence” in 7 violation of

(c)(1)(A)—(ECE No. 33) be, and the same hereby is, VACATED. 8 IT IS FURTHER ORDERED that petitioner’s consecutive sentence of 51 months 9 imprisonment and supervised release term of 5 years for count one—aiding and abetting Hobbs 10 | Act robbery—(ECF No. 33) be, and the same hereby is, REINSTATED. DATED July 29, 2020. 2 tts ©. Atala 13 UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

es C. Mahan District Judge -3-