Charles Dylan Kay v. United States

• Court: District Court, D. Nevada
• Decided: September 24, 2019
• Docket: 2:16-cv-01466
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 UNITED STATES OF AMERICA, ) 4 ) Respondent/Plaintiff, ) Case No.: 2:03-cr-00074-GMN-1 5 vs. ) ) ORDER 6 CHARLES DYLAN KAY, ) 7 ) Petitioner/Defendant. ) 8 ) ) 9 10 Pending before the Court is Petitioner Charles Dylan Kay’s (“Petitioner”) Motion to 11 Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (“2255 Motion”), (ECF 12 Nos. 34, 38). The Government filed a Response, (ECF No. 40), and Petitioner filed a Reply, 13 (ECF No. 43).1 For the reasons discussed below, Petitioner’s 2255 Motion is DENIED. 14 I. BACKGROUND 15 On April 1, 2003, Petitioner pleaded guilty, without the benefit of a plea agreement, to 16 one count of federal bank robbery in violation of 18 U.S.C. § 2113(a). (Change of Plea at 1, 17 ECF No. 12). In preparation for sentencing, a presentence investigation report (“PSR”) was 18 prepared. (Id. at 2). The PSR recommended a “career offender” enhancement under the United 19 States Sentencing Guidelines (U.S.S.G.), finding, inter alia, that the instant bank robbery 20 offense, as well as his prior federal felony conviction for armed bank robbery, and state felony 21 convictions for conspiracy to commit robbery and homicide were “crimes of violence,” as 22 defined in U.S.S.G. § 4B1.2. (PSR at 6–8, 14). On July 11, 2003, Petitioner’s sentencing 23 hearing, (ECF No. 18), was held. The court concluded that Petitioner qualified as a career 24

25 1 Additionally, Petitioner filed a Supplemental Brief, (ECF No. 46), in support of his 2255 Motion. The Government filed a Response, (ECF No. 49), and Petitioner field a Reply, (ECF No. 50). 1 offender under the Guidelines, and sentenced Petitioner to a term of 188 months’ 2 imprisonment. (J., ECF No. 19); (Sentencing Tr. 17:8–19:7, Ex. A to Pet’r’s 2255 Mot., ECF 3 No. 38-1). Without the career offender enhancement, Petitioner’s guideline range for the 4 federal bank robbery conviction would have been 57 to 71 months. (PSR at 5, 9, 12); (see also 5 Statement of Reasons). 6 On June 22, 2016, Petitioner filed an Abridged 2255 Motion, (ECF No. 34), followed by 7 a comprehensive 2255 Motion, (ECF No. 38), on December 22, 2016. Petitioner contends that 8 the instant bank robbery offense and prior convictions used to enhance his sentence no longer 9 constitute crimes of violence after the Supreme Court’s decision in Johnson v. United States, 10 135 S. Ct. 2551 (2015). (See 2255 Mot. 3:2–5, ECF No. 38). In Johnson, the Supreme Court 11 ruled that the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally 12 vague. Johnson, 135 S. Ct. at 2557. Petitioner accordingly points to the language in U.S.S.G 13 § 4B1.2(a)’s residual clause, which is identical to the ACCA’s residual clause, for the 14 proposition that the statutory provisions, and any sentences imposed under them, are invalid. 15 (See 2255 Mot. 6:9–8:8). 16 The Government responds that Johnson does not apply retroactively to Sentencing 17 Guidelines challenges on collateral review. (Resp. 4:13–11:7, ECF No. 40). Further, the 18 Government argues that even if the Guidelines were subject to vagueness challenges under 19 Johnson, Petitioner’s sentence would not be affected because Petitioner’s instant and prior 20 convictions qualify as crimes of violence without resort to U.S.S.G. § 4B1.2(a)’s residual 21 clause. (Id. 11:8–15:11). 22 Subsequent to the filing of Petitioner’s 2255 Motion, the U.S. Supreme Court entered its

23 decision in Beckles v. United States, 137 S. Ct. 886 (2017). Beckles held that Johnson does not 24 apply to sentences imposed under the advisory U.S. Sentencing Guidelines. Beckles, 137 S. Ct. 25 at 890, 894. The Supreme Court concluded that, because the Guidelines “merely guide the 1 exercise of a court’s discretion in choosing an appropriate sentence within the statutory range,” 2 they are not subject to void-for-vagueness challenges. Id. at 892. In light of Beckles, this Court 3 allowed the parties to submit supplemental briefing. (Order at 4, ECF No. 45). 4 In Petitioner’s Supplemental Brief, (ECF No. 46), Petitioner argues that Beckles does not 5 foreclose his 2255 Motion because Beckles focused on the discretionary nature of the advisory 6 Sentencing Guidelines, and Petitioner was sentenced in 2003—when the Guidelines were 7 mandatory, not advisory. (Pet’r ’s Suppl. Br. 5:16–17, ECF No. 46). 8 Subsequent to the filing of the parties’ supplemental briefing, the Ninth Circuit issued its 9 decision in United States v. Blackstone, 903 F.3d 1020, 1028–29 (9th Cir. 2018), cert. denied, 10 139 S. Ct. 2762 (2019). As pertinent to this case, Blackstone held that “Johnson did not 11 recognize a new right applicable to the mandatory Sentencing Guidelines on collateral review.” 12 Blackstone, 903 F.3d at 1023, 1028 (“The Supreme Court has not held that the mandatory 13 Sentencing Guidelines are subject to this vagueness challenge. As a result, [the petitioner’s] 14 current motion is not timely under the statute.”). This Order now follows. 15 II. LEGAL STANDARD 16 Under 28 U.S.C. § 2255, a petitioner may file a motion requesting the Court which 17 imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255(a). 18 Such a motion may be brought on the following grounds: “(1) the sentence was imposed in 19 violation of the Constitution or laws of the United States; (2) the court was without jurisdiction 20 to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or 21 (4) the sentence is otherwise subject to collateral attack.” Id.; see United States v. Berry, 624 22 F.3d 1031, 1038 (9th Cir. 2010). Generally, motions pursuant to § 2255 must be filed within

23 one year from “the date on which the judgment of conviction becomes final.” 28 U.S.C. 24 § 2255(f)(1). However, the statute also authorizes filing within one year of “the date on which 25 the right asserted was initially recognized by the Supreme Court, if that right has been newly 1 recognized by the Supreme Court and made retroactively applicable to cases on collateral 2 review.” Id. § 2255(f)(3). 3 III. DISCUSSION 4 Petitioner asserts that his 2255 Motion, filed on June 22, 2016, is timely pursuant to 5 § 2255(f)(3) because it was filed within one year of the Supreme Court’s decision in Johnson v. 6 United States, 135 S. Ct. 2551 (2015), which was issued on June 26, 2015. (2255 Mot. 4:11–20, 7 ECF No. 38). According to Petitioner, the Supreme Court recognized a new right in Johnson 8 and announced a substantive rule that is therefore retroactive to cases on collateral review. (Id. 9 4:21–6:8). 10 In Johnson, the Supreme Court struck down the residual clause of the Armed Career 11 Criminal Act (ACCA) as unconstitutionally vague. Johnson, 135 S. Ct. at 2557. The statutory 12 provision at issue in Johnson, 18 U.S.C. § 924(e), requires a sentencing court to impose a 13 mandatory 15-year minimum sentence for a conviction under 18 U.S.C. § 922(g), which 14 prohibits felons and other designated persons from possessing firearms, when the defendant has 15 three or more prior convictions for a “serious drug offense” or a “violent felony.” In turn, 16 “violent felony” is defined as a felony that: 17 (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or 18 (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise 19 involves conduct that presents a serious potential risk of physical injury to another. 20

21 18 U.S.C. § 924(e)(2)(B) (emphasis added). “The closing words of this definition, italicized 22 above, have come to be known as the [ACCA’s] residual clause.” Johnson, 135 S. Ct. at 2556. 23 Johnson struck down this clause, but left untouched subsection (i) and the remainder of 24 subsection (ii). In Welch v. United States, 136 S. Ct. 1257, 1268 (2016), the Supreme Court 25 held that Johnson announced a substantive rule that applies retroactively on collateral review. 1 Petitioner argues that Johnson is applicable to the career offender Sentencing 2 Guideline—U.S.S.G § 4B1.2—because it contains a “materially identical” residual clause. 3 (2255 Mot. 8:6–9:5). Furthermore, Petitioner is undeterred by Beckles v. United States, 137 S. 4 Ct. 886 (2017), which held that the advisory Sentencing Guidelines are not subject to void-for- 5 vagueness challenges under the Due Process Clause. Beckles, 137 S. Ct. at 897. Petitioner 6 contends that his case is distinguishable because the Sentencing Guidelines were mandatory in 7 2003, the year in which he was sentenced. (Pet’r ’s Suppl. Br. 3:16–21, ECF No. 46). 8 However, it is the Ninth Circuit’s ruling in United States v. Blackstone, 903 F.3d 1020 9 (9th Cir. 2018), that controls the outcome of this case. In Blackstone, the Ninth Circuit held 10 that “Johnson did not recognize a new right applicable to the mandatory Sentencing Guidelines 11 on collateral review.” Blackstone, 903 F.3d at 1028. Indeed, Blackstone concluded by noting 12 that the “Supreme Court may hold in the future that Johnson extends to sentences imposed 13 when the Sentencing Guidelines were mandatory . . . , but until then [the petitioner’s] motion is 14 untimely.” Id. at 1029. 15 Here, Petitioner seeks to assert the same right rejected in Blackstone, namely, that the 16 mandatory Sentencing Guidelines are subject to vagueness challenges under the Due Process 17 Clause. Because this Court is bound by the Ninth Circuit’s decision in Blackstone, it must find 18 that the right asserted here has not been made retroactive to cases on collateral review. As 19 such, Petitioner’s 2255 Motion is untimely, and therefore, Petitioner’s 2255 Motion, (ECF Nos. 20 34, 38), is DENIED. 21 Additionally, the Court will not issue a certificate of appealability, which is required for 22 Petitioner to proceed with an appeal of this Order. 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22;

23 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950–51 (9th Cir. 2006); see also United States 24 v. Mikels, 236 F.3d 550, 551–52 (9th Cir. 2001). This means that Petitioner must make “a 25 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Slack v. 1 McDaniel, 529 U.S. 473, 483–84 (2000). He bears the burden of demonstrating that the issues 2 are debatable among jurists of reason; that a court could resolve the issues differently; or that 3 the questions are adequate to deserve encouragement to proceed further. Slack, 529 U.S. at 4 483–84. 5 The Court has considered the issues raised by Petitioner with respect to whether they 6 satisfy the standard for issuance of a certificate of appealability, and determines that the issues 7 do not meet that standard. The Court therefore DENIES Petitioner a certificate of 8 appealability. 9 IV. CONCLUSION 10 IT IS HEREBY ORDERED that Petitioner’s 2255 Motion, (ECF Nos. 34, 38), is 11 DENIED. 12 IT IS FURTHER ORDERED that a Certificate of Appealability is DENIED. 13 DATED this _2_4__ day of September, 2019. 14 15 ___________________________________ Gloria M. Navarro, District Judge 16 United States District Court 17 18 19 20 21 22 23 24 25