UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA,

v. Criminal Case No. 04-93 (RJL)

MATTHEW WEST,

FILED
JUL 13 2018

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Defendant/Petitioner. )

Clerk. U.S. District & Bankru tcy
MEMOC§)UM OPINION comfth Distr.@tof;o,u%bia

(July_/;L,ZOIS) [Dkts. # 57, 60]

Petitioner Matthew West (“defendant” or “West”) moves to vacate and correct his
sentence under 28 U.S.C. § 2255. See Suppl. Mot. to Vacate J. Under 28 U.S.C. §2255
(“Pet.’s Suppl. Mot.”) [Dl<t. # 60]; l\/Iot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (“Pet.’s Mot.”) [Dl<t. # 57]. Following his conviction for possessing a
firearm as a convicted felon, West Was sentenced as an armed career criminal pursuant to
the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). In his § 2255 pleadings,
West argues that his sentence is invalid in light of the Supreme Court’s decision in
Johnson v. Um'ted Sz‘ates, 135 S. Ct. 255l (2015), Which strucl<' down as
unconstitutionally vague a provision of ACCA known as the “residual clause.”

With the residual clause invalidated, West contends that he no longer qualities as
an armed career criminal under ACCA. Specilically, West asserts that his prior felony
convictions for New Jersey second-degree aggravated assault, third-degree aggravated
assault, and second-degree robbery do not constitute “violent felon[ies]” under ACCA’s

remaining applicable provision, known as the “elements clause.” Pet.’s Suppl. Mot. 2;

see 18 U.S.C. § 924(e)(2)(13). 'l"hat is so, according to West, becausc: l) the,New .lersey
assault statute requires only that a defendant act recklessly; and 2) the relevant provision
of the New Jersey robbery statute does not require the use of violent physical force_. See
Pet.’s Suppl. l\/Iot. 16-20. West therefore asks this Court to vacate and correct his
sentence

'1`he Government counters that West’s motion should be dismissed on the
procedural grounds that it does not satisfy the requirements for second or successive
petitions, is time-barred, and is procedurally defaulted See U.S.’s Opp’n to Def.’s_ l\/lot.
& Suppl. l\/lot. Vacate J. Under 28 U.S.C. § 2255 (“U.S.’s Opp’n”) 11-19 [Dkt. # 64]. On
the merits, the Government argues that West’s prior convictions for assault and robbery
qualify as violent felonies under ACCA’s elements clause and that West`s sentence
should therefore stand. [a’. at 19-32. Upon consideration of the pleadings and the
relevant law, and for the reasons discussed below, l agree with the Governmenlt that
West’s motion to vacate and correct his sentence is procedurally barred and, in any event,
fails on the merits.

BACKGROUND

Federal law prohibits convicted felons, such as West, from possessing firearms
See 18 U.S.C. § 922(g)(1). On ()ctober l, 2004, ajury convicted West ofviolatin_g that
prohibition See l()/l/2004 l\/linute Entry. Generally, prior felons found guilty of
unlawfully possessing a handgun in violation of §922(g)(1) face up to 10 years’
imprisonment See 18 U.S.C. § 924(a)(2). That sentencing calculus changes,_however, if

the individual qualifies for a sentencing enhancement under ACCA.

As relevant here, ACCA provides that a defendant convicted of violating
§ 922(g)(l) is subject to a mandatory minimum prison term of 15 years if the defendant
has three prior convictions for a “violent felony." [d. §924(e)(1). ACCA defines
“violent felony” as “any crime punishable by imprisonment for a term exceeding one
year” that (1) “has as an element the use, attempted use, or threatened usc of physical
force against the person of another"’; (2) “is burglary, arson, or extortion, [or] involves
use of explosives”; or (3) “otherwise involves conduct that presents a serious potential
risk of physical injury to anotlier.” [d. §924(e)(2)(13). Those provisions, respectively,

33 GC

have come to be known as ACCA’s “elements clause, enumerated clause,” and
“residual clause.” See U)ii`tea’Slales v. Booke/”, 240 F. Supp. 3d 164, 167 (D.D.C. 2017).
At the time of his § 922(g)(1) conviction in this Court, West’s prior felony record
included New Jersey state convictions for second-degree aggravated assault, third-degree
aggravated assault, and second-degree robbery. Pet.’s Suppl. l\/lot. 2; see 2/8/2005
Revised Presentence lnvestigation Report (“PSR”) 6-8. Based on that record, both the
Government and West agreed with the Probation Ofl`ice’s conclusion that West was
subject to a mandatory minimum of 15 years’ imprisonment under ACCA. See l)SR 11 15
(“[T,]he defendant has at least 3 prior convictions for ‘violent felonies’ as defined under

18 U.S.C. § 924(e)(2).”); see z`a’. 1167 & p.16. 1 accepted that assessment and, on l\/larch

24, 2005, sentenced West to a prison term of216 months. See Judgment 1-2 [Dkt. # 29].

Over a decade later, during which West tried but failed to set aside his conviction
and sentence both on direct appeal and through multiple collateral challenges,l the
Supreme Court issued its 2015 decision in Jolmson v. Um`lecl Stales (“J()lms()n 2015”),
135 S. Ct. 2551 (2015). ln that decision, for reasons this Court need not detail, the
Supreme Court struck down ACCA’s “residual clausc” as unconstitutionallylvague. See
ld. at 2563. The next year, in Welcli v. Um`tea’ States, 136 S. Ct. 1257 (2016), the
Supreme Court held that Jolmson 2015 announced a new, substantive constitutional rule
and, as such, applied retroactively to cases on collateral review. See id. at 1265.

Shortly after the decision in Welch, the ChiefJudge ofour Court issued a Standing
Order containing procedures to be followed by defendants asserting post-Jolmson 2015
challenges to their sentences See generally 6/2/2016 Standing Order.2 'l`he Standing
Order appointed the ()ffice of the Federal Public Defender for the District ofColumbia to
represent eligible defendants who may qualify for relief from their sentences under
Jolmson 2015 and Welc/i. [cl. at 1. Pursuant to the Standing Order’s instructions, West,

through counsel, filed an abridged motion under 28 U.S.C. § 2255 to vacate and correct

 

' Our Circuit affirmed West’s conviction on direct appeal, rejecting all of West’s challenges to
this Court’s pretrial evidentiary rulings and voir dire procedures See generally Um'lecl Slclles v. Wes/,
458 F.3d 1 (D.C. Cir. 2006). ln April 2008, West filed a motion to vacate, set aside, or correct his
sentence pursuant to 28 U.S.C. §2255 [Dkt. #41]; that motion was dismissed as time barred See
6/8/2009 l\/lem. Order 4 [Dkt. # 46]. ln 2013, West again petitioned for a correction of his sentence,
arguing that the Presentence investigation Repoit had incorrectly computed his criminal history score.
See l\/lot. Court to Order "l`hat Probation Dep’t Correct P.S.l. Report 1 [Dkt. # 47]. 'l"his Court construed
West’s motion as one under §2255 and, after ordering a response from the Government, denied the
motion on procedural grounds See 5/12/2014 1\/lem. Order 3-4 [Dkt. # 54]. Shortly after the issuance of
that memorandum order, West filed yet another motion under § 2255, raising “almost identical”
arguments as those contained within his first § 2255 motion filed in 2008. 5/2/2016 l\/lem. Order 3 [Dkt.
# 56]. 'l`hat motion was subsequently dismissed as procedurally barred Sce /cl. at 3-4.

2 "l`he June 2, 2016 Standing Order is available at http://www.dcd.uscourts.gov/sites/dcd/files/

1853_001.par.

his sentence in light of Jolmson 2015. See generally Pet.’s l\/lot. Aftcr receiving
permission to file a second or successive §2255 motion from D.C. Circuit, see 1a re
Mcill/iew Wesl, No. 16-3049 (D.C. Cir. July l, 2016) (“Circtiit Order”) [l)kt. #~ 58:], West
filed the supplemental §2255 motion currently pending before the Court, see Pet.’s
Suppl. 1\/lot.
ANALYSIS

28 U.S.C. §2255 permits a federal prisoner such as West to file a motion to
“vacate, set aside or correct” a sentence that “was imposed in violation of the
Constitution or laws of the United States” or “was in excess of the maximum authorized
by law.” [d. §2255(a). ln his supplemental motion, West argues that he is entitled to
relief under the terms of §2255 because he no longer qualifies as an armed career
criminal under ACCA_and thus cannot lawfully be subjected to /~\CCA’s 15-year
mandatory minimum_following Jolirzson 2015’s invalidation of the residual clause. See
Pet.’s Suppl. 1\/lot. 2. "fhat is so, West asserts, because his prior felony convictions for
New Jersey second-degree aggravated assault, third-degree aggravated assault, and
second-degree robbery do not qualify as violent felonies under the remaining applicable
ACCA provision known as the elements clause. See z`cl. at 13-21. West therefore asks
this Court to grant his § 2255 motion, vacate his original mandatory-minimum sentence,
and either resentence or discharge him. Icl. at 22-23.

'fhe Government opposes West’s motion on both procedural and substantive
grounds ffo start, the Govcrnment argues that West’s motion does not satisfy the

statutory requirements for a second or successive §2255 motion-specifically, the

requirement that his claim “relies on a new rule of constitutional law.”i 28 U.S.C.
§ 2244(b)(2)(A); See U.S.’s Opp’n 11-15. ln the alternative, the Governinent argues that
West’s motion is untimely under §2255(1')’s one-year statute of limitations and is
procedurally defaulted due to West’s failure to raise his ACCA claims at trial or on direct
appeal. See U.S.’s Opp’n 15-19. On the merits, the Government asserts that ./olmsori
2015 does not entitle West to relief because West’s prior convictions for `New .lersey
aggravated assault and robbery qualify as violent felonies_and thus expose him to
ACCA’s 15-year mandatory minimum sentence_under ACCA’s still-valid elements
clause. See id. at 19-32. lelaving considered those arguments 1 agree with the
Government that West’s § 2255 petition should be 1)1§£1\111§1). A discussion of the various
procedural and substantive issues presented by West’s motion will quite clearly
demonstrate why.
A. Procedural Requirements

Federal law erects several procedural hurdles that federal habeas petitioners must

clear before their claims may be considered on the merits 'l`he Government argues that

West’s motion fails to clear two such procedural hurdles3

 

3 ln arguing that this Court should reject the Government’s procedural arguments, West points out
that our Chrcuitainh<nized die thig oflus niothni. See Petfs Stu)pf hdot.8 ékrin. 8-9; see also CHrcuh
Order. Such authorization, however, is granted simply upon a petitioner’s “prima facie showing that the
applicath)n sathnies” die applicable statutory reqtnrenments for sec<uid or successive niotkuis. 28 lJ.S.(l
§ 22¢h4(b)(3)((:). /\s sucln circtnt authorizath)ns d<)riotzibso|ve disuict coruls ol`dieh statutory directive
to “disnnss any claini presented in a sec<nid or successive aprnicathui that die court of appeals has
authoMzed to be fHed tudess the apphcant shows that the chuni saushes” the relevant staunory
requirements Id. §2244(b)(4); Ls'ee, e.g., Tyler v. C¢u'n, 533 U.S. 656, 661 n.3 (2001) (noting that § 2244
establishes different standards of review for successive motions by courts of appeals and district courts).
l therehne rnust engage in a de novo evaluathni ofthe approprnneness of VVesfs niotkui under die
governing provimons. See Brnni Rs hdeans, Fea@ra/ lhxbeas AAWHLMM § ll 82 (2018 ed) (coHecnng

cases).

6

First, the Government argues that West’s motion fails to satisfy the threshold
standard for a second or successive motion under 28 U.S.C. § 2255. "l`hat _standa'rd, in
relevant part, authorizes a district court to entertain a second or successive § 2255 motion
only when the applicant shows that the claim relies on “a new rule of constitutional law,
made retroactive to cases on collateral review by the Supreme Court, that was previously
unavailable.” ld. § 2255(h)(2); See also i`cl. § 2244(b)(2)(A). The Government contends
that West has failed to carry his threshold burden to show that his motion in _fact “relies”
upon .]o/mson 2015. [cl. § 2255(h)(2). That conclusion follows the Government asserts
because West has not demonstrated that his mandatory minimum sentence was indeed
rendered pursuant to ACCA’s now-invalid residual clause, as opposed to the
constitutionally permissible elements clause.

Second, the Government argues that West’s motion runs afoul of t_he one-year
statute of limitations period applicable to §2255 motions See l`cl. §2255(1'). When a
habeas petitioner asserts a challenge based upon a right “newly recognized by the
Supreme Court and made retroactively applicable to cases on collateral review,” the one-
year limitations period begins running on “the date on which the right asserted was
initially recognized by the Supreme Court.” [cl. § 2255(1)(3). "fhe Government concedes
that Jo/mson 2015 triggered a new one-year period for the filing of § 2255 motions see
U.S.’s Opp’n 16; West’s initial post-Johnson 2015 petition, moreover, was filed within
that one-year period. See generally Pet.’s 1\/lot. Notwithstanding those considerations
the Government maintains that West’s claim is untimely because, without demonstrating

that he was sentenced pursuant to the residual clause (as opposed to the elements clause),

West cannot show that his claim is “in fact predicated on” Jolmson 2015’s invalidation of
the residual clause. U.S.’s Opp’n 17.4 1

As the above discussion indicates the Government’s procedural arguments arc
largely premised on West’s alleged failure to demonstrate that he was sentenced pursuant
to the now-defunct residual clause (as opposed to the elements clause). Whether and to
what extent a defendant must make that showing to overcome procedural objections
under § 2244 and § 2255 is a question that has divided courts fielding the influx of post-
Jolmsorz 2015 habeas petitions

On one side of the issue, several courts_including some of my colleaguesihave
held that, to overcome the various procedural hurdles applicable to collateral habeas
challenges a post-.]r)/a/isorz 2015 habeas petitioner need only show that his sentence “may
have been predicated on application of the now-void residual clause.” Unz'ied Sl'ales v.
Winstorr, 850 F.3d 677, 682 (4th Cir. 2017) (emphasis added); see also, e.g., Uni'lea’
Stales v. Geozos 870 F.3d 890, 896 (9th Cir. 2017); Booker, 240 F. Supp'. 3d at 169;
Um'tea’ Stales v. W[lsorz, 249 l". Supp. 3d 305, 311-13 (D.D.C. 2017); U/'zlr‘ecl States v.
Buller, 253 F. Supp. 3d 133, 140-41 (D.D.C. 2017). Under that framework, for which

West advocates a sentencing court’s “silence regarding the basis of the defendant’s

4 /-\s an alternative to its statutory procedural arguments the Government also argues that any
.]oli/iso/r 2015 claim by West should be dismissed as procedurally defaulted Under the procedural default
doctrine, a court typically may not consider “an argument made on collateral review that was not made on
direct appeal, unless the defendant shows cause and prejudice." Ur/ilec/SIa/e.\' v. Hug/ies 514 F.3d 15, 17
(D.C. Cir. 2008). A number of my colleagues have convincingly rejected similar procedural default
arguments by the Government in the context of post-./olm.s'on 2015 §2255 motions See, e.g., Um'/ea’
Sta/es v. Bm/er, 253 F. Supp. 3d 133, 141-42 (D.D.C. 2017); Um`tec/ Slates v. Wils'o)r, 249 F. Supp. 3d
305, 314-15 (D.D.C. 2017); Booker, 240 F. Supp. 3d at 170-71. 1 agree with their thorough analyses and
thus will not spill any additional ink rejecting the Government’s claim ofprocedural default.

sentence” is “construed . . . in the petitioner’s favor." Dimoll v. Um'lecl Slates 881 1"`.3d
232, 240 n.6 (1st Cir. 2018) (citing ]n re Clzance, 831 F.3d 1335, 1341 (1lth Cir. 2016)).
Such a rule is necessary, according to the courts that have adopted it, to avoid an
“absurd” scheme under which “certain criminal defendants would be barred from raising
an otherwise cognizable claim under Jol/mson (2015) because thc sentencing judge did
not specify which clause she was relying on at a time when that was not required.”
Baller, 253 F. Supp. 3d at 140 (internal quotation marks omitted). “'l`o require more,”
some courts have cautioned, “would render Jolmson reliefvirtually impossible to obltain.”
Booker, 240 F. Supp. 3d at 169 (internal quotation marks omittcd).

Other courts have adopted a more stringent threshold rule under which a post-
./ohnsori 2015 habeas petitioner “bears the burden of establishing that it isimore likely
lhaa not that he was sentenced solely pursuant to ACCA’s residual clause.” Dimoz‘t, 881
F.3d at 243 (emphasis added) (dismissing Jolirisoa 2015 claim as untimely); see also
Beeman v. Um`tecl Stales, 871 F.3d 1215, 1223-25 (11th Cir. 2017) (dismissing ./o/iasorz
2015 claim because petitioner “1"ailed to prove_that it was more likely than not-he in
fact was sentenced as an armed career criminal under the residual clause”); Uni`tecl States
v. Waslii)'igtaa, 890 F.3d 891, 896 (10th Cir. 2018) (rejecting argument that defendant
need only show that the “district court Coala' have relied on the residual clause” and
instead holding that “the burden is on the defendant to show by a preponderance of the
evidence_i.e., that it is more likely than not_his claim relies on Johasoa” (emphasis
added)). Courts taking that approach have done so in view of the fact that their

precedents interpreting the Antiterrorism and Effective Death Penalty Act (“/\liDP/\”)

place the burden ofproof and production on post-conviction petitioners See Dimorr, 881
13`.3d at 240; Beemaa, 871 F.3d at 1222-23; Wasliiagion, 890 11`".3d at 895. According to
those courts adopting a contrary rule that “treat|:s:| ./olinsoa claimants differently than all
other § 2255 movants claiming a constitutional violation” would lead to arbitrary results
Beeman, 871 F.3d at 1224. lt would also turn §2255’s burden of proof on its head,
thereby “undercut[ting] an animating principle of AEDPA: the presumption of finality.”
Dimott, 881 F.3d at 240.

ln my view, the latter approach, under which a post-.]o/msoa 2015 habeas
petitioner bears the burden of showing by a preponderance of the evidence that h_e was
sentenced pursuant to the residual clause, is more consistent with the ‘fclear limits
established by Congress for when federal post-conviction petitions may be entertained by
the federal courts.” lcl. at 241. Allowing petitioners to evade Al§ll)l’/-\’s procedural
requirements by pointing to a “mere possibility” that their claims turn on Jolmsoii 2015
cannot be squared with the statutory text of § 2244(b), under which a habeas “app_licant
must actually ‘show’ that the claim satisfies the standard” for second or successive
petitions Ia'. at 240; see Tyler, 533 U.S. at 661 n.3 (alteration omitted). Nor does such
an approach accord with the “presumption of linality and legality” thatattaches to
judgments and sentences following the process of direct review. Dimoll, 881 F.3d at 241
(citing 1a re Moore, 830 13`.3d 1268, 1272 (11th Cir. 2016) (internal quotation marks
omitted) (quoting Barefoot v. Eslelle, 463 U.S. 880, 887 (1983)).

"l`o be sure, requiring post-Jolmsorz 2015 petitioners to supportias opposed to

merely assert_the conclusion that they were likely sentenced pursuant to lthe residual

10

clause will result in fewer successful collateral challenges But “|`t:|hat the burden is less
friendly to petitioners” than the one West prefers “does not make it unequal” or otherwise
improper, Dimozl, 881 F.3d at 242, especially “in light of society’s legitimate interest in
the finality ofjudgments,” Uriilea’ Siates v. Zakas, 793 F. Supp. 2d 77, 80 (D.'D.C. 2011);
cf Beemari, 871 F.3d at 1224 (“lt is no more arbitrary to have the movant lose in a § 2255
proceeding because of a silent record than to have the Government lose because of one.
What would be arbitrary is to treat Jo/msoa claimants differently than all other §2255
movants claiming a constitutional violation.”). l\/loreover, as the Tenth Circuit has noted,
post-Jolinsorz 2015 petitioners are not without means to carry their burden; rather, the
“relevant background legal environment that existed at the time of the def`endant’s
sentencing” will often be of use in determining “whether the district court relied on the
residual clause in sentencing.” Washiriglori, 890 1"`*`.3d at 896 (internal quotation marks
omitted) (quoting Uriiz‘ea' Slales v. Saycler, 871 F.3d 1122, 1128-30 (10th Cir. 2017)); see
also Beeman, 871 F.3d at 1224 n.4 (noting the kinds of direct and circumstantial evidence
that may be used to show whether a defendant was sentenced under the residual clause).
l»lere, West acknowledges that the available sentencing-stage documents
including the parties’ sentencing memoranda and the Presentence lnvestigation Report,
do not specify the ACCA provision upon which his sentence was based. See Pet.’s

Suppl. l\/lot. 3-4.5 Unfortunately for West, moreover, a review of the “relevant

 

5 /-\s defendant notes in his supplemental motion, the sentencing transcript was unavailable at the
time of the parties’ briefing in this case. Following the filing of the instant motion and the associated
opposition and reply briefs however, the Court Reporters’ office was able to locate t.he sentencing
transcript The Court’s review of that transcript confirms that neither the parties nor the Court cited any
particular provision of ACCA during the sentencing proceedings

11

background legal environment that existed at the time of [hisj sentencing” undermines
rather than supports the argument that he was likely sentenced under the residual clause.
Wasliinglon, 890 F.3d at 896 (internal quotation marks omitted). flow so?

As of the time of West’s sentencing, our Circuit’s precedents characterized
§ 924(e)(2)(13) as setting forth “two subcategories of prior criminal conduct: First,l there
are felonies against the person that have as an element the use or threat of physical force;
and, second, there are felonies against properly (sueh as burglary, arson, extortion, etc.)
that present a serious potential risk of physical iiijury.” Unitea’Stales v. MaI/i_is_, 963 F.2d
399, 405 (D.C. Cir. 1992). Given that precedent, it is unsurprising that, prior to West’s
sentencing, assault and robbery convictions were often analyzed under the elements
clause~not the residual clause. See, e.g., ia’. at 408 (analyzing D.C. Code robbery under
ACCA’s elements clause); Unilecl Slates v. Willia/ns, 358 13.3d 956, 965-66 (D.C. Cir.
2004) (same); cf Unitea’ Slates v. Hill, 131 1'*`.3d 1056, 1062-63 (D.C., Cir. 1997)
(referencing elements clause of Guidelines in discussion of whether attempted robbery
conviction was crime of violence). ln such a situation, where neither the sentencing
record nor the governing precedents at the time of sentencing support the conclusion that
a sentence was rendered pursuant to the residual elause_, West, as “the party with the
burden|:,] loses.” Bee/nan, 871 F.3d at 1224. Thus because West has failed to show that
he was more likely than not sentenced under the residual clause rather than the elements
clause, his asserted reliance on Jolinson 2015 is insufficient to excuse him from the

procedural requirements of§ 2244 and § 2255.

Recognizing the unsettled state of the law on the showing required by post-
.]olznson 2015 habeas petitioners however, 1 decline to dispose of West’s petition solely
on the procedural grounds advanced by the Government Cf. Unilea' Slales v. Hic/cs, 285
F. Supp. 3d 150, 154 (D.D.C. 2018) (concluding that “§ 2255 motion must be dismissed
as untimely” but explaining why, “[e]ven ifnot untiinely,” the motion “would fail on the
merits”); Gewin v. Doa’rill, 779 F. Supp. 2d 27, 43 (D.D.C. 2011) (diseussing “why, even
assuming the petitions were not procedurally barred, they would fail on the merits”).
lnstead, as explained below, even assuming that West’s motion satisfies the relevant
procedural requirements the motion fails on the merits

B. Merits of West’s § 2255 Motion

ln his supplemental motion, West asserts that his prior New Jersey assault and
robbery convictions do not qualify as violent felonies under the elements lclause'. lele
therefore claims that, following Jolinson 2015’s invalidation of the residual clause, he no
longer qualifies for ACCA’s 15-year mandatory minimum sentence. Unfortunately for
West, 1 disagree. Before explaining why, it is necessary to provide a brief overview of the
framework f"or evaluating West’s prior convictions

'1`o determine whether a prior conviction qualifies as a “violent felony” under
ACCA, “courts use what has become known as the ‘categorical approach."’ Desca/nps v,
Unitea’ Slai‘es, 570 U.S. 254, 257 (2013). Under that approach, courts determine whether
a defendant’s prior offense of conviction constitutes a “violent felony” for purposes of`
ACCA by looking solely to the elements of the offense, as opposed to the defendant’s

actual conduct. See Mai‘liis v. Unitea’ Slales, 136 S. Ct. 2243, 2248-49 (2016); see also

13

.]o/inson 2015, 135 S. Ct. at 2557. ln other words if` the statutory elements of thc offense
criminalize conduct beyond that which ACCA covers then, under the categorical
approach, the offense does not qualify as a “violent felony”_even if, in committing the
of`f`ense, the defendant clearly engaged in violent cona'act.f) n

ln this case, the upshot of the categorical approach is this: lf the least serious
conduct criminalized by the New .lersey assault and robbery statutes does not involve
“the use, attempted use, or threatened use of physical force against the person of
another,” 18 U.S.C. §924(e)(2)(13)(i), that offense categorically does not qualify as a
“violent feloiiy” under ACCA. See Descamps, 570 U.S. at 261.7 With that rule in mind,
l now examine West’s prior convictions for New .1ersey aggravated assault and robbery.

1. New Jersey Aggravated Assault Convictions

As should be familiar by now, ACCA’s elements clause defines a “violent felony”

as one that “has as an element the use, attempted use, or threatened use of`physical force

6 l\/lany jurists have questioned the propriety of the categorical approach, noting that it ‘“l`oi'ces
judges into an alternative reality” under which “repeat offenders often avoid sentencing enhancements for
their violent crimes.” Un/'/ea’ Srales v. Cliapman, 866 F.3d 129, 137-38 (3d Cir. 2017) (.lordan, .1.,
concurring); see also id. (collecting cases questioning categorical approach); Mallris, 136 S. Ct. at 2267-
71 (Alito, .l., dissenting) (categorical approach “calls for sentencingjudges to delve into pointless abstract
questions’7 and “has increasingly led to results that Congress could not have intended”). ln view ol"
West’s actual conduct as reported in the PSR_conduct that involved pummeling an individual in the
head five times with a sawed off shot gun, beating a fellow inmate in the face, and forcefully removing
jewelry from a victim, see PSR 1111 24-26_this case provides yet another troubling example of how the
categorical approach requires judges to “ignore facts already known and instead proceed with eyes shut,”
Clia‘i)/nan, 866 F.3d at 138 (Jordan, J., concurring). 1

7'l`here is one wrinkle when applying this general rule. When a court is “dealing with a so-called
‘divisible’ statute,” it must “employ the ‘modifred categorical approach’ to determine which alternative
crime the defendant committed.” Um`led Srates v. Realrick, 841 F.3d 478, 482 (D.C. Cir. 2()16). To do so,
the court “look[s] beyond the statute ‘to a limited class of documents (for example, the indictment, jury
instructions or plea agreement and colloquy) to determine what crime, with what elements the defendant
was convicted of.’” Ia’. (internal quotation marks and alteration omitted) (quoting Malliis, 136 S. Ct. at
2249). Upon confirming the statutory provision under which a defendant was convicted, the court
proceeds to apply the categorical approach to that crime.

14

against the person of another.” 18 U.S.C. §924(e)(2)(B)(i). West argues that his
convictions for New .lersey second- and third-degree aggravated assault do not qualify as
violent felonies under that provision. Pet.’s Suppl. l\/lot. 16-18.8 West’s argument is
premised on the fact that l\lew Jersey second-degree and third-degree aggravated assault
can be violated with a mens rea of recklessness la’. at 17. Relying heavily upon the
analysis ofa few of my district court colleagues West argues that a “reckless application
of force is not sufficient to constitute the ‘use’ of physical force” under the elements
clause. [a'. (internal quotation marks omitted); see also Supplement to Reply l\/lcm. Supp.
l\/Iot. & Suppl. Mot. to Vacate Judgment Under 28 U.S.C. § 2255, at 1 [Dkt. # 68] (noting
that “multiple district courts in this circuit have rejected the Government’s argument that
a reckless mens rea is sufficient for a crime to qualify as a ‘violent felony’ under the
elements clause”).

Unfortunately for West, his argument is foreclosed by our Circuit’s recent opinion

in Unitecl States v. Haig/il, No. 16-3123, 2018 WL 3077534 (D.C. Cir. .1une 22, 2018). ln

 

3 At the time of West’s New Jersey convictions New ilersey defined second-degree and third-
degree aggravated assault, respectively, as follows:

b. Aggravated assault A person is guilty of aggravated assault ifhe:

(1) /-\ttempts to cause serious bodily injury to another, or causes such injury purposely or
knowingly under circumstances manifesting extreme indifference to the value'of human life
recklessly causes such injury; or . . .

(7) Attempts to cause significant bodily injury to another or causes significant bodily injury
purposely or knowingly or, under circumstances manifesting extreme indifference to the
value of human life recklessly causes such significant bodily injury . . . .

N.J.S.A. §2C:l2-1(b); see icl. §2C:12-1(b)(13); l)et.’s Suppl. l\/lot. 16-17 & n.l 1. 'l"he`llnited States
agrees with West that, based on that statutory laiiguage, a “corivicti<)ri for second-degree or third-degree
aggravated assault in New Jersey can be sustained by proof of reckless conduct alone." U.S.`s Opp’n
19.

15

Haiglit, .ludge Kavanaugh, joined by Chief.ludge Garland and .ludge Srinivasan, squarely
confronted and rejected the argument that an assault that “can bel committed
recklessly . . . does not categorically require the use ofviolent force ‘against the person of
another’ within the meaning of ACCA.” Ia'. at "‘6-7, slip op. at 14. Relying on the
Supreme Court’s 2016 decision in Voi`sine v. Uni'lea’ Slates, 136 S. Ct. 2272,' which held
that reckless assaults qualify as “the use or attempted use of physical f`orce” under 18
U.S.C. §921(a)(33)(A)(ii), ia’. at 2278, our Circuit concluded that “[ajs long as a
defendant’s use of force is not accidental or involuntary, it is ‘naturally described as an
active employment of force," regardless of whether it is reckless knowing, or
intentional.” Haig/il, 2018 WL 3077534, at *7, slip op. at 15 (quoting Voisine, 136 S. Ct.
at 2279).9 That holding controls here: West’s convictions for New _lcrscy sceond- and
third-degree aggravated assault qualify as violent felonies under ACCA"s elements
elause, notwithstanding the fact that those offenses may be committed with a mens rea of
recklessness10

° ln so holding, otrr Circuit joined “four other courts of appeals that have addressed the isstie
either in the ACCA context or in the equivalent Guidelines ‘crime of violence` context.” liciig/'il, 2018
Wla 3077534, at *7, slip op. at 15-16 (citing Uniled Slales v. Mendez-I*Ienriai/ez, 847 li.3d 214, 220-22
(5th Cir. 2017); Uni'reclSlales v. Verwie/)e, 874 F.3d 258, 262 (6th Cir. 2017); Un/`leclSIa/es v. /i`ogg, 836
F.3d 951, 956 (8th Cir. 2016); Unilea’S/ates v. Pam, 867 F.3d 1191, 1207-08 (10th Cir. 2017)).

10 ln his reply brief, West argues for the first time, that the assault statute’s “requirement that a
defendant ‘cause serious or significant bodily injury’ simply does not constitute a requirement that the
defendant ‘use, attempt to use, or threaten to use violent physical f`orce.”’ Reply l\/lem. Support Pet.’s
l\/lot. & Suppl. l\/lot. 39 (internal quotation marks omitted) [Dkt. # 671; see id. 33 n.13. Not only is that
argument f`orfeited, see lelarr/'.s'on v. (Q[Iic'e /frehi`leel o/`(,'apilol, 68 l"`. Supp. 3d 174, 183 (D.D.C. 2014)
(collecting cases), it is unpersuasive West has not credibly articulated how, in the context of an
aggravated assaall statute, there is “zi realistic probability” that a defendant would be convicted of causing
“serious” or “significant” “bodily injury to another” without also applying force to that person.
Mo)»icri`e/_"e v. Holder, 569 U.S. 184, 191 (2013); see UnileclS/ales v. Horlon, 461 F. App’x 179, 184 (3d
Cir. 2012) (New Jersey assault statute “requires as an element ofthe offense, the use of force sufficient to
cause physical pain or injury”). To the extent, moreover, that West relies on a distinction between direct
and indirect uses of force, that argument too runs headlong into the reasoning of the Hai`glil Court, which

 

16

2. New Jersey Robbcrv Conviction

West argues that he is entitled to relief for a second, independent reason.
According to West, his New .lersey second-degree robbery conviction does not qualify as
a “violent felony” under the elements clause, as interpreted in (Cnrtis) Jolins'on v. Unitea’
States, 559 U.S. 133 (2010), because the statutory section under which he was convicted
requires only the use of de minimis_as opposed to “violent”_physical force. lPet.’s
Suppl. l\/lot. 19-20 (quoting (Ciirlis) Jolznson, 559 U.S. at 140).

rfhe parties agree that this Court should apply the modified categorical approach to
determine the provision of the New rlersey robbery statute under which West was
convicted. See ial. at 19; U.S.’s Opp’n 28. Applying the modified categorical analysis
both sides also agree that West was convicted under N..I.S.A. §2C:15-1(a)(1). `”l"hat
provision specifies that a person is guilty of second-degree robbery “if`, in the course of
committing a theft, he: (1) lnflicts bodily injury or uses force upon another.” N..l.S.A.
§2C:15-1(a)(1). Although the parties debate whether subsection (a)(l) sets forth two
means by which an individual can commit robbery or instead two separate elements l
need not resolve that dispute here. That is because, even applying then categorical
approach to the “least of the[]” means of committing second-degree robbery specified by

subsection (a)(l)_namely, "'us[ingj force upon another,” Pet.’s Suppl. l\/lot. 20; N.rl.S.A.

rejected the notion that there was “any such distinction between direct and indirect force in the language
of the statute or in the relevant preecdcnts” Hai'gli/, 2018 Wla 3077534, at *6, slip op. at 13. For all of
those reasons l decline West’s invitation to engage in “the kind of creative speculation the Supreme
Court has proscribed” by adopting his belated argument based on the New .lersey assault statute’s bodily
injury requirement Rea’ri'ek, 841 l'".3d at 485.

17

§2C:15-1(a)(1)~1 conclude that subsection (a)(l) satisfies ACCA’s elements clause.
How so?

West’s argument with respect to his New _lersey second-degree robbery conviction
relies on the Supreme Court’s decision in (Cnrtis) Jolinson. 1n that case, the Supreme
Court held that the term “force” as used in ACCA’s elements clause “means violent
forceithat is force capable of causing physical pain or injury to another person.” 559
U.S. at 140. ln so holding, the Court distinguished “f`orce” as used in ACCA from the
“more specialized legal usage of the word ‘f`orce,”’ which “describl:ed|,one of the
elements of the common-law crime of battery” and could be “satisfied by even the
slightest offensive touching.” [a’. at 139. Applying its definition of force, the Supreme
Court concluded that a conviction for simple battery under Florida law, which required
“proof of only the slightest unwanted physical touch,” did not satisfy ACCA’s elements
clause. [a’. at 136-37, 145.

flere, West argues that the second-degree robbery subsection under which he was
convicted requires only a showing of a'e minimis force and therefore does not satisfy the
elements clause as interpreted by (Cartis) Jo/inson.ll 1 agree with the Government,
however, that the premise of West’s argument is incorrect: As interpreted by the New
Jersey Supreme Court, subsection (a)(l) does not permit a second-degree robbery

conviction to be obtained based on a defendant’s use of mere a’e mini/nis force. Rather,

 

" The question whether a robbery that may be committed with only “slight" lforce satisfies
('(',`i/rlis) Jolinson’s reading ofthe elements clause will be argued before the Supreme Court later this year.
See Siokeling v. Unilec/Slales, 138 S. Ct. 1438 (l\/lem.) (2018). As discussed below, however, l conclude
that New lersey’s second-degree robbery statute, as interpreted by the New .lersey Supreme Court,
requires more than mere de minimis or “slight” force.

18

as explained at length in New ./ersey v. Sein, 590 A.2d 665 (1\1.11. 1991), subsection (a)(l)
was intended to cover more forceful takings of property than those prohibited by the
state"s theft statute. The Sein Court noted that although “[s]oine jurisdictions have
construed the term ‘force’ as used in the state’s robbery statute” to require only “the
amount ofpliysical energy necessary to take the property,"` New .1erscy’s robbery statute
does not reflect that approach. la’. at 667-68. 'l`lie statute instead “adoptls:l the majority
rule,” under which a “secret or sudden taking of property from the owner without putting
him in fear and without open violence is deemed larceny, but if there be struggle to keep
it or any violence or disruption, the taking is robbery.” [a’. at 668, 670 (internal quotation
marks and alteration omitted).

Against that backdrop, the Sein decision makes clear that the “f"orce” clause of
subsection (a)(l) covers “only those” takings “that involve some degree of force to 'wresl
the object from the victim.” [cl. at 669 (internal quotation marks omitted). “To ‘wrest,”’
the Sein Court goes on to explain, “is to ‘pull, force, or move by violent wringing or
twisting movements.”’ [a'. (emphasis added) (quoting Wel)ster’s Tliira’ New linei”national
Diclionary 2640 (1971)). ln enacting subsection (a)(l) ofthe robbery statute, then, the
New Jersey “Legislature apparently determined that the violence associated with
‘wresting’ is deserving of more severe punishment” than any force associated with the
“simple snatching or sudden taking ofproperty from the person of another.” [cl, (internal

quotation marks omitted); see also New .]ersey v. Farraa’, 753 A.2d 648, 654'(1\1..1. 2000)

19

(New Jersey robbery statute “addrcsses the criminal who is prone to use violence” to take
a person’s property (emphasis added) (internal quotation marks omitted)). '2

Ultimately, the Sein Court held that a defendant’s “sudden snatching of a purse
from the grasp of its owner,” during which the defendant used no force other than that
required to slide the purse” from under the victim’s arm, did not “involve the type of
f`orce” required to support a conviction under the robbery statute. 590 A.2d at 666.
Subsequent New .lersey cases applying the teachings of Sein confirm that convictions
under the robbery statute require an “elevate[d]” showing of force as compared to
convictions under the theft statute. [a’. Compare New Jersey v. Pannisco, 75'0 A.2d 107,
111-14 (N.J. Super. Ct. App. Div. 2000) (evidence that the defendant, while in his
vehicle, “grabbed” victim’s purse and “accelerat[edj the gas,” thereby “dragging or
pulling the victim[],” was sufficient to sustain robbery convictions), abrogated on ollier
grounds by New Jersey v. Hill, 868 A.2d 290 (1\1..1. 2005); New ./ersey v. Balclwin, 2015
WL 8547003, at *2 (1\1..1. Super. Ct. App. Div. Dec. 14, 2015) (upholding robbery
conviction where victim testified that defendant’s “grabbing motion pulled her out of the

car” and “spun her around”) (brackets omitted); New Jersey ex rel. Q.M., 2013 WL

 

12 New ./ersey v. Sewe//, 603 A.2d 21 (N..l. 1992), upon which West relies is not to the contrary.
ln Sewe/l, the New Jcrsey Supreme Court examined the mens rea showing necessary to sustain a
conviction under subsection (a)(l). See ia’. lt did not analyze the amount of`_/oree required under
subsection (a)(l). lndeed, the evidence in Sewel/ “support[edj a finding that all threc” victims of
defendant’s actions “su'ffered ‘bodily injury”’ as defined by New Jersey statute. [a'. at 22.

The circuit cases cited by West are also unavailing As the Government points out, the statutes at
issue in those cases cover lesser degrees of force than does subsection (a)(l). See, e.g., Unilea’ Siales v.
Winslon, 850 F.3d 677, 685 (4th Cir. 2017) (Virginia common law robbery, which “encompass[es] a
range of a’e minimis con/acl by a defeiidaiit,” does not satisfy elements clause (emphasis added)); Unilecl
Slales v. Eason, 829 F.3d 633, 640-42 (8th Cir. 2016) (Arl<ansas robbery statute, which covers takings
made with “any . . . bodily impact,” does not satisfy elements clause (emphasis added)); Unirea’ Slales v.
Parne/l, 818 F.3d 974, 978 (9th Cir. 2016) (l\/lassachusetts robbery statute, which covers usc of “any
force, however sligln,” to obtain property, does not satisfy elements clause (emphasis added)).

20

69245, at *3 (1\1..1. Super. Ct. App. Div. Jan. 8, 2013) (suf`ficient evidencc'to establish
robbery where defendant “slapped the employee in f`urtherance" of theft from store); New
Jersey v. Horton, 2007 WL 506455, at *3 (N.J. Super. Ct. App. Div. ll`eb. 20, 2007)
(victim’s testimony that “defendant pushed her shoulder and engaged in a tug of war for
her purse” and only secured purse “after the strap on her bag broke” was sufficient to
support robbery conviction), with New Jersey v. Smalls, 708 A.2d 737, 739-40 (N..l.
Super. Ct. App. Div. 1998) (evidence that defendant "‘bumpl'ed:|” victim’s “jacket pocket”
in the course of taking her wallet was not “sufficient evidence of force to_ raise’i pick
pocket offense from theft “to a second degree robbery”).

Thus in contrast to the state statute at issue in (Cnrtis) Joltnson, subsection (a)(l)
requires more than “nominal contact” or “the slightest offensive touching.” `559 U.S. at
138-39. As the Sein decision emphasizes a conviction for robbery under subsection
(a)(l)’s force clause will stand only when there has been a showing of an “ele_vat[ed:'|” use
of force by the defendant Sein, 590 A.2d at 666. Specifically, to be found guilty of
robbery under subsection (a)(l), a defendant must have engaged in the “vio_lence
associated with ‘wresting”’#that is “pull[ing], forc[ingj, or mov[ingl by violent
wringing or twisting movements”_something from the victim. Icl. at 669 (emphasis
added) (internal quotation marks omitted).

ln my view, subsection (a)(l)’s prohibition of those types of “violent. . .
movements” “exerted ‘upon another,”’ ia’., covers “violent force;that is force capable
of causing physical pain or injury to another person”ias required by /-\CCA"s elements

clause, (Cartis) Jolinson, 559 U.S. at 140. Compare ia’. at 139 (definition of force

21

includes among other things “strength or energy; active power; vigor"' (cmphasis added)
(internal quotation marks omitted)), with Sewell, 603 A.2d at 27 (forcc required by
robbery statute is the degree of “physical power or strength required to overcome
physical resistance to taking of`property” (cmphasis added)). Adhering to the New .l_erscy
Supreme Court’s interpretation of the state’s robbery statute, 1 therefore conclude that
subsection (a)(l) of the statute “meets the definition of ‘violent felony’ in 18 U.S.C.
§924(e)(2)(13)(i).” (Curtis) Johnson, 559 U.S. at 138; see also Ba/cer v. Unitecl States,
No. 3:16-cv-367, 2018 WL 3037430, at *4-5 (W.D.N.C. June 19, 2018) (concluding that
New .1ersey’s second-degree robbery statute “rcquire[s] sufficient physical force to
qualify as a violent felony under ACCA”); cf Unitea’ States v. Garcia, 877 1".3d 944,
950-54 (10th Cir. 2017) (l\lew l\/fexico robbery statute, which is “distinct from larceny

because it requires and is designed to punish, the element of force,’ is violent felony

under elements clause (internal quotation marks omitted)). For that reason, 1 reject

West’s argument based on his New Jersey second-degree robbery conviction.13

 

13 1\/1y conclusion on this score finds additional support in (Ci/r/is) ./ohnson itself, which observes
that Black’s Law Dictionary defines “‘physical force’ as ‘l"orce consisting in a physical act, esp a vio/enl
ael clireetea' against a ro/)l)ery victim.”’ 559 U.S. at 139 (cmphasis added) (brackets omitted); e/.'
(,'aslleman, 134 S. Ct. at 1421 (Scalia, J., concurring) (“hitting, slapping, shoving, grabbing, pinching,
biting and hair pulling” are all “capable of causing physical pain or injury" (alterations omitted) (citing
(Czirtis) ./'ohnson, 559 U.S. at 143)). Some courts have nonetheless concluded that certain robbery
statutes requiring more than cie minimis acts of force do not satisfy the elements clause’s force
requirementl See, e.g., Unilea'S/ates v. Wa//on, 881 F.3d 768, 773-74 (9th Cir. 2018) (Alabama robbery
conviction based on evidence that defendant “pushed or shoved [victim] back into a corncr” did not
reflect sufficient level of“force” to satisfy elements clause); Unite<lSla/es v. Gara'ner, 823 F.3d 793, 803-
04 (4th Cir. 2016) (North Carolina case upholding robbery conviction where defendant “pushed the
shoulder of an electronics store clerk, causing her to fall onto shelves” did not reflect sufficient level of`
“force" under elements clause). l am “not persuaded” by those cases but instead agree with the courts
that have observed that acts such as “[s]hoving a person” clearly “involve[:j force capable of producing
pain or injury” under (Cz/rti`s) ./o/inson. Garcia, 877 F.3d at 954 n.l 1. -

22

CONCLUS[ON

For the foregoing reasons West’s prior convictions for New .lersey second-degree
aggravated assault, third-degree aggravated assault, and second-degree robbery qualify as
violent felonies under ACCA’s elements clause. As such, West’s prior convictions
render him subject to ACCA’s 15-year mandatory minimum, notwithstanding Johnson
2015’s invalidation of the residual clause. West has therefore failed to demonstrate his
entitlement to sentencing relief under 28 U.S.C. §2255, and the Court accordingly
DENIES his pending motions to vacate and correct his sentence. An Order consistent

with this decision accompanies this 1\/Iemorandum Opinion.

titan

Rici-iARti-,LJQEON
United States District Judge

23

