in the united states court of appeals … states of america, respondent. ... the presentence...

No. 15-72559

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DJUAN O. GARDNER,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

United States District Court Western District of Washington at Seattle District Court Case No. CR12-098-RSM

The Honorable Ricardo S. Martinez United States District Judge

SUPPLEMENTAL BRIEFING FOR DJUAN O. GARDNER

Application for Leave to File a Second or Successive Motion to Vacate, Set Aside, or Correct Sentence, 28 U.S.C. § 2255(h)

Michael Filipovic Federal Public Defender Vicki Lai Staff Attorney Federal Public Defender’s Office 1601 5th Avenue, Suite 700 Seattle, Washington 98101 (206) 553-1100

Case: 15-72559, 10/30/2015, ID: 9740290, DktEntry: 9-1, of 21(1 of 58)

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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................. ii BACKGROUND .................................................................................................... 1 PROCEDURAL HISTORY .................................................................................... 1 I. Mr. Gardner’s Conviction and Sentence ............................................ 1 II. First Section 2255 Motion .................................................................. 4 III. The Present Claim .............................................................................. 5 LEGAL STANDARDS .......................................................................................... 7 LEGAL ANALYSIS ............................................................................................... 7 I. Johnson Announced a Previously Unavailable New Rule of Constitutional Law ............................................................................. 8 II. Mr. Gardner Has Made a Prima Facie Showing that Johnson Is Substantive and Thus Retroactive to Cases on Collateral Review .... 9 III. Mr. Gardner Is Entitled to Certification Under Section 2255(h)(2) ............................................................................ 13 CONCLUSION ..................................................................................................... 15 CERTIFICATE OF COMPLIANCE .................................................................... 16 CERTIFICATE OF SERVICE ............................................................................. 17


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TABLE OF AUTHORITIES

Cases Banks v. United States, __ S. Ct. __, 2015 WL 4987655 (Oct. 19, 2015)................. 6 Beard v. Banks, 542 U.S. 406 (2004) .............................................................. 10, 14 Beckles v. United States, 135 S. Ct. 2928 (2015) .................................................... 6 Bennett v. United States, 119 F.3d 468 (7th Cir. 1997) ........................................... 14 Bousley v. United States, 523 U.S. 614 (1998) ................................................ 10, 14 Chaidez v. United States, 133 S. Ct. 1103 (2013) ................................................... 8 Cooper v. United States, 135 S. Ct. 2938 (2015) .................................................... 6 Danforth v. Minnesota, 552 U.S. 264 (2008) ........................................................ 11 Davis v. United States, 131 S. Ct. 2419 (2011) ..................................................... 11 Denson v. United States, 135 S. Ct. 2931 (2015) .................................................... 6 Ezell v. United States, 778 F.3d 762 (9th Cir. 2015) ........................................... 1, 8 Gonzales v. United States, __ S. Ct. __, 2015 WL 2473125 (Oct. 5, 2015) ............. 6 James v. United States, 550 U.S. 192 (2007) .................................................. 5, 8, 9 Johnson v. United States, 135 S. Ct. 2551 (2015) .......................................... passim Jones v. United States, __ S. Ct. __, 2015 WL 4916474 (Oct. 13, 2015) ................. 6 Jones v. United States, 135 S. Ct. 2944 (2015) ....................................................... 6 Maldonado v. United States, 135 S. Ct. 2929 (2015) .............................................. 6 McCarthren v. United States, __ S. Ct. __, 2015 WL 4916396 (Oct. 13, 2015) ...... 6 Price v. United States, 795 F.3d 731 (7th Cir. 2015) ................................ 10, 13, 14 Saffle v. Parks, 494 U.S. 484 (1990) ............................................................... 10, 13 Schriro v. Summerlin, 542 U.S. 348 (2004) ......................................... 10, 12, 13, 14 Smith v. United States, 135 S. Ct. 2930 (2015) ....................................................... 6 Sykes v. United States, 131 S. Ct. 2267 (2011) ............................................ 4, 5, 8, 9 Talmore v. United States, 135 S. Ct. 2937 (2015) ................................................... 6 Teague v. Lane, 489 U.S. 288 (1989) ............................................................. passim Thompson v. Calderon, 151 F.3d 918 (9th Cir. 1998) ....................................... 7, 13 Tyler v. Cain, 533 U.S. 656 (2001) .............................................................. 8, 11, 14 United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) ........................................... 12


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United States v. Park, 649 F.3d 1175 (9th Cir. 2011) ............................................. 4 United States v. Reina-Rodriguez, 655 F.3d 1182 (9th Cir. 2011) ........................ 12 United States v. Snyder, 643 F.3d 694 (9th Cir. 2011) ............................................ 4 United States v. Spencer, 724 F.3d 1133 (9th Cir. 2013) ........................................ 6 United States v. Willis, 795 F.3d 986 (9th Cir. 2015) .............................................. 6 Vinales v. United States, 135 S. Ct. 2928 (2015) ..................................................... 6 Whorton v. Bockting, 549 U.S. 406 (2007) .......................................................... 8, 9 Woratzeck v. Stewart, 118 F.3d 648 (9th Cir. 1997) ......................................... 7, 14 Wynn v. United States, 135 S. Ct. 2945 (2015) ....................................................... 6

Statutes and Other Authorities 18 U.S.C. § 922 ......................................................................................................... 1 18 U.S.C. § 924 ......................................................................................................... 5 18 U.S.C. § 3553 ................................................................................................... 3, 4 28 U.S.C. § 2244 ............................................................................................. 1, 7, 13 28 U.S.C. § 2255 .............................................................................................. passim U.S.S.G. § 2K2.1 .......................................................................................... 2, 3, 4, 6 U.S.S.G. § 4B1.2 .............................................................................................. passim U.S.S.G. § 7B1.1 ...................................................................................................... 6 Wash. Rev. Code § 46.61.024 .................................................................................. 2 Hertz & Liebman, 2 Federal Habeas Corpus Practice & Procedure § 28.3[d] (6th ed. 2011) ........................................................................................................ 7


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BACKGROUND

On August 17, 2015, before the appointment of the undersigned counsel,

Djuan Gardner filed a pro se application asking that the Court authorize the district

court to consider a second or successive 28 U.S.C. § 2255 motion based on

Johnson v. United States, 135 S. Ct. 2551 (2015). On October 16, 2015,1 this Court

ordered that counsel “may file a supplemental application addressing whether

Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015), announced a new

rule of constitutional law made retroactive to cases on collateral review, and

whether it is applicable to petitioner’s sentence[.]” COA No. 15-72559, Dkt. # 6-1.

Because Johnson announced a new substantive rule of constitutional law made

categorically retroactive to cases on collateral review by the Supreme Court, Mr.

Gardner has made a prima facie showing of a tenable claim under Johnson

satisfying § 2255(h) and § 2244(b)(2)(A). Whether Mr. Gardner is entitled to relief

is a question for the district court to decide. See 28 U.S.C. § 2244(b)(4).

PROCEDURAL HISTORY

I. Mr. Gardner’s Conviction and Sentence

A Grand Jury filed a one-count Indictment charging Mr. Gardner with

possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1) on 1 28 U.S.C. § 2244(b)(3)(D) states that “[t]he court of appeals shall grant or deny the authorization to file a second or successive application not later than 30 days after the filing of the motion.” This Court has held that the statutory time limit is hortatory not mandatory. Ezell v. United States, 778 F.3d 762, 765 (9th Cir. 2015).


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April 12, 2012. Appendix 1, Indictment. Mr. Gardner entered a guilty plea to the

lone charge on May 25, 2012. In the plea agreement, the parties stipulated that Mr.

Gardner’s base offense level was 20 because his Washington state conviction for

attempting to elude in violation of RCW 46.61.024 qualified as a “crime of

violence” as defined in U.S.S.G. § 4B1.2(a). See U.S.S.G. § 2K2.1(a)(4)(A). The

parties also agreed that a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)

applied because Mr. Gardner knew the firearms he sold would be taken out of the

United States, and that he qualified for a three-level downward adjustment for

acceptance of responsibility, yielding an adjusted offense level of 21 and an

advisory Guideline range of 70 to 87 months. Defense counsel urged the court to

sentence Mr. Gardner to 37 months’ imprisonment, pointing to mitigating factors

including his drug addiction, his family ties, and the fact that the six months that

Mr. Gardner had spent at the Federal Detention Center was the longest sentence he

had ever served. USDC No. CR12-098-RSM, Dkt. # 22.

The Presentence Investigation Report (PSR) stated that the four-level

enhancement under § 2K2.1(b)(6) applied and that Mr. Gardner was entitled to a

three-level adjustment for acceptance of responsibility but recommended a base

offense level of 22 because the offense involved a “semiautomatic firearm that is

capable of accepting a large capacity magazine” and because Mr. Gardner’s

eluding conviction qualified as a crime of violence. U.S.S.G. § 2K2.1(a)(3)(A)(i).


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Presentence Investigation Report (filed separately under seal) at ¶ 15. The PSR

calculated Mr. Gardner’s adjusted offense level at 23. This offense level, combined

with Mr. Gardner’s criminal history category V, placed him in an advisory

Guideline range of 84 to 105 months’ imprisonment.

At sentencing, the government asked the district court to accept the parties’

stipulation to a base offense level of 20 although it acknowledged that the PSR’s

calculation was technically correct. Using the 70 to 87 month range as the “starting

point for coming up with what the government believes is the appropriate

recommendation[,]” the prosecutor recommended that the court sentence Mr.

Gardner to 72 months’ imprisonment. Appendix 2, Sentencing Transcript at 3. The

court “accept[ed] the PSR in its entirety,” and agreed with Probation that the

correct advisory Guideline range was 84 to 105 months. Starting at that Guideline

range, the district court imposed a sentence of 70 months’ imprisonment after

applying the 18 U.S.C. § 3553(a) factors. The district court’s reasons for imposing

a sentence 14 months below the low end of the Guideline range included Mr.

Gardner’s “tough childhood,” “potentially undiagnosed post-traumatic stress

disorder,” lifelong struggle with drug abuse, and because “this is probably the

longest time he’s been held in custody.” Id. at 19.

Without the crime of violence finding, Mr. Gardner’s post-plea base offense

level would now be 20. U.S.S.G. § 2K2.1(a)(4)(B) (base offense level 20 if the


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offense involved a semiautomatic firearm capable of accepting a large capacity

magazine). Applying the remaining adjustments, Mr. Gardner’s adjusted base

offense level would be 21, resulting in an advisory Guideline range of 70 to 87

months. A 70-month sentence no longer accounts for the § 3553(a) factors relied

upon by the district court to impose a sentence 14 months below the low end of the

now erroneous Guideline range.

II. First Section 2255 Motion

On September 23, 2013, Mr. Gardner filed a § 2255 motion arguing in part

that trial counsel was ineffective for failing to challenge the application of the

“crime of violence” enhancement. Specifically, he argued that his conviction under

Washington’s Attempting to Elude statute did not qualify as a crime of violence.

Citing to Sykes v. United States, 131 S. Ct. 2267 (2011), and United States v.

Snyder, 643 F.3d 694 (2011), the district court held Washington’s Attempting to

Elude statute was categorically a crime of violence under the residual clause. The

court noted that although Sykes was an ACCA case, its holding applied to U.S.S.G.

§ 4B1.2(a)’s identically worded residual clause under United States v. Park, 649

F.3d 1175, 1177 (9th Cir. 2011). Appendix 3, district court’s order denying § 2255

motion at 6.

The district court dismissed the motion and denied a certificate of

appealability. Mr. Gardner filed a pro se notice of appeal and request for a


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certificate of appealability on August 18, 2014. USDC No. CV13-1730-RSM, Dkt.

# 12. On October 20, 2014, this Court denied Mr. Gardner’s request for a

certificate of appealability. COA No. 14-35692, Dkt. # 4.

III. The Present Claim

The district court found Mr. Gardner’s prior Washington state conviction for

eluding a “crime of violence” under § 4B1.2(a)’s residual clause. The residual

clause defines the terms “violent felony” and “crime of violence” as offenses that

“otherwise involve[] conduct that presents a serious potential risk of physical

injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). In

Johnson v. United States, 135 S. Ct. 2251 (2015), the Supreme Court held that

imposing an increased sentence under the residual clause of the ACCA violates the

Constitution’s guarantee of due process. Specifically, the Court concluded that “the

indeterminacy of the wide-ranging inquiry required by the residual clause both

denies fair notice and invites arbitrary enforcement by judges,” and “[i]ncreasing a

defendant’s sentence under the clause denies due process of law.” Id. at 2557.

Finding the residual clause “vague in all its applications[,]” the Court overruled its

contrary decisions in Sykes and James v. United States, 550 U.S. 192 (2007). Id. at

2562-63.

Although Johnson was an ACCA case, this Court has held that the ACCA’s

residual clause and the Guidelines’ residual clause must be interpreted in the same


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way and have applied decisions interpreting the two provisions interchangeably.

See United States v. Willis, 795 F.3d 986, 996 (9th Cir. 2015) (“We make no

distinction between ‘violent felony’ in ACCA and ‘crime of violence’ in

§ 4B1.2(a)(2) for purposes of interpreting the residual clauses.”); United States v.

Spencer, 724 F.3d 1133, 1138 (9th Cir. 2013) (same). Indeed, following Johnson,

the Supreme Court has to date vacated and remanded thirteen lower court decisions

in which defendants have been sentenced under the same residual clause in the

Guidelines, including five cases on collateral review.2

Because Johnson established a new substantive rule of constitutional law

that the Supreme Court has made retroactive to cases on collateral review, which

was previously unavailable, this Court has the authority to grant Mr. Gardner’s

request to file a successive petition under 28 U.S.C. § 2255(h)(2).

2 The GVRs included eleven career offender cases. See Banks v. United States, No. 15-5722, __ S. Ct. __, 2015 WL 4987655 (Oct. 19, 2015); McCarthren v. United States, No. 15-5654, __ S. Ct. __, 2015 WL 4916396 (Oct. 13, 2015); Jones v. United States, No. 15-5667, __ S. Ct. __, 2015 WL 4916474 (Oct. 13, 2015) (28 U.S.C. § 2255 motion); Gonzales v. United States, No. 14-9996, __ S. Ct. __, 2015 WL 2473125 (Oct. 5, 2015); Vinales v. United States, 135 S. Ct. 2928 (2015); Denson v. United States, 135 S. Ct. 2931 (2015) (28 U.S.C. § 2255 motion); Beckles v. United States, 135 S. Ct. 2928 (2015) (28 U.S.C. § 2255 motion); Maldonado v. United States, 135 S. Ct. 2929 (2015); Smith v. United States, 135 S. Ct. 2930 (2015); Wynn v. United States, 135 S. Ct. 2945 (2015) (28 U.S.C. § 2255 motion); Jones v. United States, 135 S. Ct. 2944 (2015) (28 U.S.C. § 2255 motion); one U.S.S.G. § 2K2.1 case, Talmore v. United States, 135 S. Ct. 2937 (2015); and one U.S.S.G. § 7B1.1 case, Cooper v. United States, 135 S. Ct. 2938 (2015).


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LEGAL STANDARDS

Before a federal prisoner may file a successive motion in the district court

under § 2255, a court of appeals must certify that the motion satisfies one of the

“gatekeeping” conditions in 28 U.S.C. § 2255(h). A court of appeals should

authorize a successive § 2255 motion when the individual makes a “prima facie

showing,” 28 U.S.C. § 2244(b)(3)(C), that his application satisfies one of the

substantive grounds for a successive motion. See 28 U.S.C. § 2255(h)

(incorporating the standards from § 2244 into § 2255). This Court has instructed

that a “prima facie showing” is “simply a sufficient showing of possible merit to

warrant a fuller exploration by the district court . . . .” Thompson v. Calderon, 151

F.3d 918, 925 (9th Cir. 1998) (citing Woratzeck v. Stewart, 118 F.3d 648, 650 (9th

Cir. 1997)).

Review at this authorization stage is strictly limited to the substantive

gatekeeping requirements. 28 U.S.C. § 2244(b)(3)(C). Issues bearing on the merits

of the proposed claim are “irrelevant” and for the district court to consider. Hertz

& Liebman, 2 Federal Habeas Corpus Practice & Procedure § 28.3[d], at 1615 (6th

ed. 2011); see 28 U.S.C. § 2244(b)(4).

LEGAL ANALYSIS

The Antiterrorism and Effective Death Penalty Act, as set out in

§ 2255(h)(2), allows a prisoner to apply for leave to file a successive


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§ 2255 motion based on “a new rule of constitutional law, made retroactive to

cases on collateral review by the Supreme Court, that was previously unavailable.”

28 U.S.C. § 2255(h)(2). Under this provision, a federal prisoner must make a prima

facie showing that his motion is based on a (1) previously unavailable (2) new rule

(3) of constitutional law (4) that has been made retroactive by the Supreme Court

to cases on collateral review. Tyler v. Cain, 533 U.S. 656, 662 (2001); Ezell, 778

F.3d at 765. This motion satisfies that standard.

I. Johnson Announced a Previously Unavailable New Rule of Constitutional Law.

The Supreme Court’s decision in Johnson announced a new rule of

constitutional law. It is well established that a rule is “new” if it was not “dictated

by precedent existing at the time the defendant’s conviction became final.”

Chaidez v. United States, 133 S. Ct. 1103, 1107 (2013) (quoting Teague v. Lane,

489 U.S. 288, 301 (1989)). Here, the rule announced in Johnson is new because it

expressly overruled James and Sykes, which had previously found the residual

clause was not void for vagueness. See Johnson, 135 S. Ct. at 2563 (“Our contrary

holdings in James and Sykes are overruled.”); Whorton v. Bockting, 549 U.S. 406,

416 (2007) (“The explicit overruling of an earlier holding no doubt creates a new

rule.”). Johnson also announced a rule “of constitutional law.” Johnson expressly

holds that “imposing an increased sentence under the residual clause of the

[ACCA] violates the Constitution’s guarantee of due process.” Id. It declares that


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the residual clause is unconstitutionally vague and that the due process clause

forbids any use of it in increasing a statutory minimum or maximum sentence. Id.

Nor was the result in Johnson previously available to Mr. Gardner. He raised

and lost a different (though related) argument under the law as it stood during his

first collateral attack. The district court specifically relied upon Sykes to reject his

claim that trial counsel was ineffective for failing to challenge his eluding

conviction as a crime of violence. He did not allege that § 4B1.2(a)’s residual

clause was unconstitutionally vague nor would such a claim have been viable. In

both James, 550 U.S. at 210 n. 6, and Sykes, 131 S. Ct. at 2276-2277, the Supreme

Court rejected suggestions by the dissenting Justices that the residual clause was

unconstitutionally vague. See Johnson, 135 S. Ct. at 2562 (pointing out that the

Court had rejected the dissenting claims of vagueness in both James and Sykes).

Until Johnson was decided, any successive collateral attack would have been

foreclosed by binding Supreme Court precedent.

II. Mr. Gardner Has Made a Prima Facie Showing that Johnson Is Substantive and Thus Retroactive to Cases on Collateral Review. The only remaining question is whether the Supreme Court has “made”

Johnson retroactive to cases on collateral review. 28 U.S.C. § 2255(h)(2). Whether

the Court has done so turns on the nature of the rule. Under the retroactivity

principles of Teague, supra, new procedural rules are not retroactive to cases on

collateral review. Teague, 489 U.S. at 310. But the Supreme Court has held that


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substantive rules are not subject to Teague, and that they necessarily apply

retroactively on collateral review. See Beard v. Banks, 542 U.S. 406, 411 n. 3

(2004) (“Rules that fall within what we have referred to as Teague’s first exception

‘are more accurately characterized as substantive rules not subject to [Teague]’s

bar’”) (quoting Schriro v. Summerlin, 542 U.S. 348, 352 n. 4 (2004)). The

Supreme Court has made clear that “Teague by its terms applies only to procedural

rules.” Bousley v. United States, 523 U.S. 614, 620 (1998).

If a new rule is substantive, it applies retroactively. Schriro, 542 U.S. at 351;

see also Bousley, 523 U.S. at 620. Substantive rules “include” rules that “narrow

the scope of a criminal statute by interpreting its terms,” Schriro, 542 U.S. at 351-

52 (citing Bousley, 523 U.S. at 620-21), that “alter [ ] the range of conduct or the

class of persons that the law punishes,” id. at 353 (citing Saffle v. Parks, 494 U.S.

484, 495 (1990)), or that “prohibit a certain category of punishment for a class of

defendants because of their status or offense,” Saffle, 494 U.S. at 494. The new

rule announced in Johnson is substantive rather than procedural. It not only

narrows the scope of the residual clause by interpreting its terms—specifically, the

term “crime of violence”—it excises it altogether and prohibits recidivist

punishment for a class of defendants because of their status. See Price v. United

States, 795 F.3d 731, 734 (7th Cir. 2015) (citing Saffle, 494 U.S. at 494) (“In

deciding that the residual clause is unconstitutionally vague, the Supreme Court


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prohibited ‘a certain category of punishment for a class of defendants because of

their status.’”). And the Supreme Court has itself “made” the rule retroactive by

announcing in several cases that substantive rules are retroactive, and thereafter

announcing a substantive rule in Johnson.3

If a new rule is substantive, it must be applied retroactively to all cases on

collateral review. See Danforth v. Minnesota, 552 U.S. 264, 266 (2008) (“New

constitutional rules announced by the [Supreme] Court that [are substantive or

watershed rules of criminal procedure] must be applied in . . . all federal habeas

corpus proceedings.”); Davis v. United States, 131 S. Ct. 2419, 2430 (2011)

(retroactivity is a “categorical matter”); Teague, 489 U.S. at 316 (new rule must

“be applied retroactively to all defendants on collateral review through one of the

two exceptions we have articulated”).

3 Tyler v. Cain, 533 U.S. 656 (2001), explains that the Supreme Court “makes” a rule retroactive when it holds that a particular type of rule is retroactive to cases on collateral review. Id. at 662. But as Justice O’Connor explained in her concurring opinion in Tyler, a new rule of constitutional law can be “made” retroactive not only through an express pronouncement of retroactivity, but also “through multiple holdings that logically dictate the retroactivity of the new rule.” Id. at 668 (O’Connor, J., concurring). Specifically, she said, “if we hold in Case One that a particular type of rule applies retroactively to cases on collateral review and hold in Case Two that a given rule is of that particular type, then it necessarily follows that the given rule applies retroactively to cases on collateral review. In such circumstances, we can be said to have ‘made’ the given rule retroactive to cases on collateral review.” Id. at 668-69.


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This Court’s decision in United States v. Reina-Rodriguez, 655 F.3d 1182

(9th Cir. 2011), reinforces the principle that if a rule is substantive, it is retroactive

to all cases on collateral review. At issue in Reina-Rodriguez was the retroactivity

of the Court’s decision in United States v. Grisel, 488 F.3d 844 (9th Cir. 2007) (en

banc), which limited the definition of “burglary” under the ACCA. Specifically,

the question before the Court in considering Reina-Rodriguez’s appeal of the

district court’s denial of his § 2255 motion was whether Greisel could be

retroactively applied to correct a Guideline sentencing enhancement imposed

because of his prior burglary conviction. 655 F.3d at 1189. The Court concluded

Grisel had retroactive effect because it announced a new substantive rule, and that

Teague’s anti-retroactivity principle was inapplicable. The Court stated: “One

could hardly have a clearer example of a “decision [ ] that narrow[s] the scope of a

criminal statute by interpreting its terms.” Id., quoting Schriro, 542 U.S. at 351.

Applying Griesel to Reina-Rodriguez’s case, the Court held his burglary

conviction was not a predicate offense under the Guidelines and remanded the case

for resentencing. See Reina-Rodriguez, 655 F.3d at 1190-93.

Because Johnson is a substantive rule and the Supreme Court has established

that substantive rules apply retroactively, Mr. Gardner has made at least a prima

facie showing that the Johnson rule has been “made retroactive to cases on

collateral review by the Supreme Court,” as required by § 2255(h)(2).


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In Price, supra, the Seventh Circuit applied these same principles to

conclude that Johnson announced a new substantive rule and that the Supreme

Court had made “Johnson categorically retroactive to cases on collateral review.”

795 F.3d at 734. The Court explained:

In deciding that the residual clause is unconstitutionally vague, the Supreme Court prohibited a “certain category of punishment for a class of defendants because of their status.” Saffle [v. Parks], 494 U.S. at 494. A defendant who was sentenced under the residual clause necessarily bears a significant risk of facing “a punishment that the law cannot impose upon him.” [Schriro v.] Summerlin, 542 U.S. at 352. There is no escaping the logical conclusion that the Court itself has made Johnson categorically retroactive to cases on collateral review.

Id.

Although Price was an ACCA case, the Seventh Circuit has relied on its

reasoning to grant successive applications in Guideline cases. See, e.g., Best v.

United States, No. 15-2417, Doc. 2, Order (7th Cir. Aug. 5, 2015); Stork v. United

States, No. 15-2687, Doc. 2, Order (7th Cir. Aug. 13, 2015).

III. Mr. Gardner Is Entitled to Certification Under Section 2255(h)(2).

Mr. Gardner has made a “prima facie showing,” under 28 U.S.C.

§ 2244(b)(3)(C), and his application satisfies § 2255(h)(2) because he has made “a

sufficient showing of possible merit to warrant a fuller exploration by the district

court.” Thompson, 151 F.3d at 925.


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Mr. Gardner has a plausible argument that Johnson is a new, previously

unavailable rule of constitutional law and that the Supreme Court has, through “a

combination of holdings,” made Johnson retroactive to cases on collateral review.

See Tyler, 533 U.S. at 666. Mr. Gardner had no opportunity when he filed his first

§ 2255 motion in 2013 to argue that a 2015 Supreme Court decision established

his sentence was enhanced in violation of the due process clause. Further, Mr.

Gardner has a claim of “possible merit” that the Supreme Court has made Johnson

retroactive through a combination of holdings. Woratzeck v. Stewart, 118 F.3d at

651 (citing Bennett v. United States, 119 F.3d 468, 469 (7th Cir. 1997)) (a “prima

facie showing” means only a “sufficient showing of possible merit”). Banks

establishes that substantive rules are retroactive, and Bousley and Schriro establish

that Teague is concerned only with rules of procedure. The new rule announced in

Johnson fits squarely into the Bousley substantive category of retroactive cases

described by Schriro.

Because Mr. Gardner has made a prima facie showing of a tenable claim, he

should be allowed to present his claim to the district court so that court may have

the opportunity to fully review the merits of his claim. See, e.g., Price, supra.

// //


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CONCLUSION Because Mr. Gardner has presented a prima facie showing of a tenable claim

that all the requirements of § 2255(h) are satisfied, he respectfully requests that his

motion be granted and that he be allowed to present his claim before the district

court.

DATED this 30th day of October, 2015.

Respectfully submitted,

s/ Michael Filipovic Federal Public Defender s/ Vicki Lai Staff Attorney Attorneys for Djuan O. Gardner


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CERTIFICATE OF COMPLIANCE

Pursuant to Fed. R. App. P. 32(a)(7)(B), the attached Supplemental Brief is

proportionately spaced, has a typeface of 14 points, and contains 3,569 words.


s/ Vicki Lai Staff Attorney Attorney for Djuan O. Gardner


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CERTIFICATE OF SERVICE

I certify that I filed the foregoing Court-ordered supplemental brief with the

Clerk of the Court for the Ninth Circuit Court of Appeals by using the appellate

CM/ECF system. Participants in the case who are registered CM/ECF users will be

served by the appellate CM/ECF system.

I mailed one copy of this supplemental brief, first-class postage prepaid, to

Djuan Gardner, Reg. No. 41541-086, at FCI Sheridan, P.O. Box 5000, Sheridan,

Oregon 97378.


s/ Suzie Strait Paralegal


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Debbie Zurn - RMR, CRR - Federal Court Reporter - 700 Stewart Street - Suite 17205 - Seattle WA 98101

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON AT SEATTLE

_____________________________________________________________

UNITED STATES OF AMERICA,

Plaintiff,

v.

DJUAN O. GARDNER,

Defendant.

))))))))))

CR12-098-RSM

SEATTLE, WASHINGTON

October 12, 2012

Sentencing Hearing

_____________________________________________________________

VERBATIM REPORT OF PROCEEDINGSBEFORE THE HONORABLE RICARDO S. MARTINEZ

UNITED STATES DISTRICT JUDGE_____________________________________________________________

APPEARANCES:

For the Plaintiff: Nicholas BrownAssistant United States Attorney700 Stewart StreetSuite 5220Seattle, WA 98101

For the Defendant: Robert LeenAttorney at LawThe Moose Tower3221 Oakes AvenueEverett, WA 98201

Case: 15-72559, 10/30/2015, ID: 9740290, DktEntry: 9-3, Page 1 of 23(24 of 58)

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THE CLERK: This is the sentencing hearing in United

States versus Gardner, cause number CR12-98, assigned to this

court. Will counsel please rise and make their appearances

for the record?

MR. BROWN: Good morning, Your Honor, Nicholas Brown

for the United States.

THE COURT: Counsel.

MR. LEEN: Good morning, Your Honor, Bob Leen

appearing on behalf of the defendant.

THE COURT: And, gentlemen, thank you.

Counsel, let me indicate for you and for the record

exactly what the court has received and had a full and

complete opportunity to review prior to our hearing this

morning. The court has received the plea agreement of the

parties, the government's sentencing memorandum, the

defendant's sentencing memo, the defendant's advisory

guideline calculations, a packet of letters of support on

behalf of the defendant, additional letters of support; and

finally the court has reviewed and received the presentence

report prepared by U.S. Probation Officer Sarah Johnson, also

present in the courtroom with us this morning.

Trusting the parties have had that same full opportunity

to review all of these materials, and please let me know if

you have not, if I could have the government's recommendation

for sentence, first of all.


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MR. BROWN: Thank you, Your Honor. Good morning. As

expressed in the filings by the parties, I believe everyone

is on the same page about what the appropriate guidelines are

in this case. As probation noted, the plea agreement

contemplated a slightly lower guideline range. But I do

think that they have come up with the correct calculation of

that range. The defendant's base offense level is a 22.

It's a four-point enhancement for possessing and transferring

the weapons to others that he believed would subsequently

take the weapons outside the United States. It's a

three-point reduction for acceptance of responsibility, for a

total offense level of 23, which has a corresponding range of

84 to 105 months.

The agreement that was entered into by the parties

contemplated a lower range that would have resulted in a

range of 70 to 87 months. And I have used that range as a

starting point for coming up with what the government

believes is the appropriate recommendation.

I do want to point out in the defendant's sentencing

memorandum they set forth the proposition that but for this

looting conviction the defendant has, he would be at a range

of 24 to 30 months. I think that's just factually incorrect.

As I look at the guidelines, he would still have a base

offense level of 20, because he would be a prohibited person

in possession of a semi-automatic firearm capable of


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accepting high-capacity magazines, which would put him at the

base offense level of 20, and not 12, as is set forth in the

defendant's sentencing memorandum.

He would, however, be at a slightly lower criminal history

level. But I think that even accepting the defendant's

argument, that range would be 57 to 71 months. And that's if

he didn't have that conviction. And, of course, he does have

that conviction and is yet to be sentenced for it.

As I thought about the government's recommendation in this

case, I do believe that our total recommendation of 72 months

in prison is appropriate. I think it's appropriate for a

number of reasons, but primarily due to the defendant's

criminal history and the specific facts of this case.

If the court looks at the defendant's criminal history, I

just want to run through it. In 2001, a driving conviction;

2002, driving offense and an obstruction offense, during

which he engaged in a high-speed flight from law enforcement;

2002, drug offense; another 2002 drug offense, this time

crack cocaine, and it also involved a firearm; 2003, driving

offense; 2004, a forgery offense; 2004, a firearms offense;

2004, another drug offense; and in 2004, both a drug and

firearm offense in the same charge.

His conduct continued. In 2006, another drug offense;

2008, a driving offense; 2009, a theft conviction; 2011, an

eluding police conviction; and another offense in 2011 for a


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drug offense.

But for the limitations that are set forth in the

guidelines that caps the number of points an individual can

get, I think that Mr. Gardner would, in fact, be at a higher

criminal history level than he currently faces. That is an

extensive and slightly overwhelming criminal history. I

think that, in part, justifies the government's

recommendation.

I've been practicing criminal law for about ten years,

most of that time as a prosecutor. And I often get

frustrated with the fact that I think it's appropriate to

recommend such lengthy sentences for defendants. But what

are you going to do? What are you going to do with someone

with that criminal history record? What are you going to do

with someone who has shown neither the desire or ability to

do the right thing, to be a safe member of this community, to

give back in some way, to simply not get in trouble, to

simply respect the law? He has done nothing to demonstrate

that he has that ability or that desire. And from my

perspective, that justifies a very lengthy sentence.

Then if you look at the facts of this case, I think that

everyone in this community throughout 2012 is acutely aware

of the dangerousness of firearms in this community. We have

been ravaged by gun violence in 2012, a record number of

shootings and a record number of deaths resulting from those


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shootings. Part of the reason we have that problem is that

people who have guns illegally possess them, and give them to

other people. And that is what happened in this case.

Mr. Gardner has multiple prior firearms convictions.

Despite the absolute prohibition on him possessing a weapon,

he again found himself in possession of two weapons; but he

didn't just possess them, he sold them. He sold them to

someone else that he thought was going to take them down to

Mexico, as part of the fight engaged with the drug cartels in

Mexico.

It's not simply that he got caught with a firearm, he was

sending firearms back out into the community. To me that

deserves a serious sanction. My responsibility as a

prosecutor is to try to represent the people of this

community. And I think the people of this community are

tired of it. They're tired of people being reckless with

firearms, and they're tired of the proliferation of the

firearms in their community. That's why I think a sentence

of 72 months is appropriate. Thank you.

THE COURT: Thank you very much, Mr. Brown.

Mr. Leen, this your opportunity to present your sentencing

recommendation on behalf of your client.

MR. LEEN: Yes, Your Honor. Thank you.

Your Honor, I think that Mr. Brown makes some strong

points. But what he's giving vent to is a community sense of


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rage at the failure of its ability to assist Djuan Gardner

grow up, accept responsibilities, and act more or less in the

manner which was just gone through, because he has basic

values. He has a loving mother, who's here. He has a

committed partner, who is here, and the mother of one of his

children.

I'm not one of those -- and I told his mother -- to say,

"Well, I didn't have a dad as a role model." That will only

get you so far. And he is 29 years old. And whether he did

or he didn't, and whether that was a significant factor in

his development or not, even though we think it was a

significant lapse and lacking, it's time to get over it.

It's time to deal with what was, and address the future.

I don't want to put too much of a rose to my client,

because it's true, he has engaged in a series of petty -- in

the sense that they were meaningless, they were thoughtless,

-- but they weren't driven by antisocial or predatory or a

mean-spirited person. They are someone who just had no

marketable skills, had no direction whatsoever. Sometimes

he'd get compassion, but he had no tough love. And other

times he'd get tough love, but there was no compassion.

He really did need something like the drug court that was

over in King County, and that type of environment, because

while his heart was in the right place, his head was not

screwed on correctly. And he just didn't know, how do you


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take the next step so that you become a productive person who

lives a normal life, and, you know, sort of an 8-to-4 Joe and

go to the movies, or do something with your kids on the

weekend. He just didn't know how to do that. He had never

experienced it. But that's what he wants.

Now, I'm not going to minimize the fact that he did sell

an assault weapon and an automatic handgun to an informant

who was operating a car sales lot, and who had established a

relationship with Djuan, because the opportunity presented

itself. And the fellow was broadcasting that he was paying a

top price for guns, and that is the reason that he gave.

I know this court doesn't have the related case that Judge

Jones has of the actual -- that was a gun-running operation.

Djuan was sort of swept up in it, too. But not because he

was actively supplying guns that were going to the cartels,

he was someone who just -- he knew about some guns, and he

heard that there was some good money, and wanted to get some

money because he was using drugs, and he has -- you know,

he's directionless, but has these responsibilities. So it

seemed like a good opportunity. The drugs, the lack of any

structure, no way would his mind say to him: Wait a second,

what are you doing here? He doesn't have those skills.

But he's starting to get those skills. He did a program

in the institution. He got his certificate. We sent it to

the probation office. And, you know, the probation officer


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also sees some reasons to be compassionate in terms of

sentencing. And I know that the prosecutor and I disagree,

but I think that that eluding charge, which it is a serious

matter, but I'm just saying when guidelines can be skewed by

that behavior alone, it just says that the guidelines really

aren't the be-all and the end-all of what a good sentence is,

or just sentence. In fact, it's a bad matrix to use to

decide a just sentence.

I've tried to calculate some kind of departure using the

factors which I've identified, and which were identified in

the letters and in the presentence report, which would be

like a 5K2.0 type of argument, a totality of the

circumstances, that those things would require a departure to

take out the untoward effect of a prior conviction on the

actual calculation of a person's guideline range.

But I think that the point that I'm trying to get to, and

I think that the prosecutor sort of addressed before he spoke

today, but addressed in his sentencing memorandum and is

addressed by probation, was that there is some good to this

man. So while you do have to sentence him, you don't have to

do it so harshly that when he finally gets out of confinement

for this court's sentence, and remembering that he still has

to go to King County and deal with the DOSA violation, and I

don't know how they would treat it, this court probably is in

a much better position than me to know what a judge is going


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to be thinking when he comes before that judge, and the

factors that they'll consider in addressing additional time.

But I don't think, I personally, and the factors that I

see are relevant to this case, feel that a sentence of over

37 months has to be imposed on him. I think that's

sufficient but not greater than necessary to address and get

his attention and punish him for the behavior he's committed.

True, it doesn't address many of the frustration and anger

that Mr. Brown identifies as the community's concerns

regarding these types of offenses. But it does address what

is best for Djuan and the community's interest. So I'd ask

the court to take that approach to imposing a sentence. I do

agree with the terms of supervision. I know that my client

would like to speak to you. I thank you for the opportunity.

I'll wait if you have questions. No questions? I'll sit

down.

THE COURT: I have no questions. Mr. Gardner, you've

heard what the attorneys have had to say. It's all about

you. There's no legal requirement today that you say

anything or make any statement, but you certainly have that

opportunity. If you'd like to address the court prior to

sentencing, let me have you step up to the podium.

Before you start, let me ask you a question. When I

indicated all the things the court had received, one of those

was the presentence report. I'm assuming you had a chance to


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review that with your counsel as well?

THE DEFENDANT: Yes.

THE COURT: You understand what the recommendations

are and what's being said in that particular report?

THE DEFENDANT: Yes.

THE COURT: All right. What would you like to say?

THE DEFENDANT: First of all, I'd like to apologize

to everybody for having to come out on my behalf to deal with

this situation. I'm not expecting for anyone to feel sorry

for me, but more to understand the obstacles that I've been

through growing up, without a consistent father in my life,

making my own decisions, having to basically teach myself to

be a man. My mom could only do so much.

I've been in various different situations where I've got

in trouble. I've done weeks, and time in programs in King

County, but I've never done any lengthy amount of time behind

bars. I feel like if there would have been a different

approach to help me, then maybe I might not have been in the

situation that I'm in. I accept responsibility for selling

firearms, because it was wrong. But I didn't do it to

promote violence, or that I was trying to encourage people

getting hurt. I did it because of the motivation of the

money, and that was really all I did it for.

Prior to this I had got two gun convictions in 2004.

Since then I hadn't been involved or touched any firearms


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since then. And that reflects in my criminal history.

Although I did make some other mistakes along the way; I'm

not perfect. But I do want a better life for myself. I

don't want to rob my kids of what I was robbed of, of having

a father, not a dad but a father, somebody that's going to be

able to take you to those games, and go to your school

programs, and do the things that a father is supposed to do,

which I did not have.

So I just feel like if I get that opportunity to show my

kids better, they won't suffer like I suffered. They won't

go down the path the same way that I went down the path.

Because with a six-year term, that will make my kids

teenagers. When my dad did his time, when he came back, I

felt like he didn't have much to say to me, because he wasn't

there for me, because he made mistakes and decisions not to

be there. And I don't want my kids to resent me that way,

because I love them wholeheartedly and would do anything for

them. But the situation still remains the same.

And I'm willing to do whatever I can or whatever I have to

do to make sure that I don't have this situation in my life

again. That's all.

THE COURT: How do you get there?

THE DEFENDANT: Just got to work hard. I need to

take advantage of the time that I'm in here. I've been doing

that. They're not offering a lot of programs pre-trial. But


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the things they did offer, I did sign up for. I have an

itinerary wrote out, depending on which facility I end up in,

vocational things I'm going to do. A GED program, so I'll

get a GED. Some things I'll be able to take from this

situation, although it's a bad situation, and try to make it

good, so I can get out and go get a job or further myself,

better myself, as opposed to falling back into the same

criminal nature, or, you know, problems that I was having

prior to.

THE COURT: You know, one of the number one reasons

people end up committing crimes is because of the people they

associate with. Can you walk away from everybody you know?

THE DEFENDANT: Yes, I can walk away from everybody I

know, because I wasn't intermixed, mingled with criminals or

criminal conduct at that point. I was brought into the

situation by someone I had been buying and selling cars from,

that I forged a relationship with. It wasn't as if I was

running with a gang or doing those type of mischievous things

in the streets to get me to that point. I had known him

previous to 2008 and formed a relationship with him through

cars, because that's my passion, that's what I like to do.

And I sold a couple cars and I bought a couple cars from him,

and that's how I even got involved with this individual.

THE COURT: Do you understand that now you've been

brought into federal court, whenever you get out, any time


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you commit another crime that has any connection at all to

federal violations, or any concurrence of jurisdiction, which

means the feds can take over the case even if it's a state

case, you'll be brought right back here?

THE DEFENDANT: Yes, I do.

THE COURT: Thank you, Mr. Gardner.

Counsel, let's take a moment and check with our probation

officer, Ms. Johnson. Good morning. Thank you for being

here. The court has reviewed your presentence report. It's

very thorough. Having heard from the attorneys, having heard

from Mr. Gardner, is there anything else you'd like to add to

your report this morning?

THE PROBATION OFFICER: Good morning, Your Honor.

Only that I believe Mr. Gardner has all the skills, not in

training or in maybe lessons learned from parents, but in

what he wants to be, that he can become all the things he

says he wants to be. I think our biggest concern on the

probation side is going to be his self-reported inability to

deal with conflict and handle conflict. Well, the state

system is very different than the federal system, and the

consequences he faces are far greater. I think with an

understanding and motivated probation officer, that he will

surely have here, and if he commits this time in custody to

working through those conflict resolution issues, then I

think he could be very successful on probation and


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supervision. And I have all the hopes that he will do that.

THE COURT: Thank you very much. Gentlemen, we're

here for sentencing on a single count of felon in possession

of a firearm. As indicated, the maximum sentence for that

offense can be up to ten years of custody, a quarter-million

dollar fine, and three years of supervised release. There's

an automatic mandatory $100 penalty assessment.

In imposing an appropriate sentence in federal court, the

court is asked basically to take three steps. Number one,

calculate the appropriate guideline range. There's a

difference of opinion here in terms of what guideline range

the court should use. The parties agreed on one that they

anticipated might be the guideline range. Everyone agrees

the criminal history category is a 5. The parties had agreed

on what would essentially be a total offense level of 21.

And given his Category 5, he would be at 70 to 87 months.

Probation comes in with a slightly different calculation.

They come up with a total offense level of 23, for an

advisory imprisonment range of 84 to 105. The difference

being the additional two points for the high-capacity

magazine involved in one of the weapons.

Once the court comes up with and calculates the

appropriate guideline range it's going to use, then the court

is to consider all factors that impact sentence, especially

those set out in 3553(a). The ultimate objective is to


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impose a sentence that is sufficient but no more than

necessary to accomplish the reasonable objectives of

sentencing. And this court has gone through that very same

scenario in trying to come up with a sentence that is

appropriate in this particular case.

First of all, I think probation's calculation of the

guideline range is accurate. Level 23, 84 to 105 months. I

understand the parties have contemplated a slightly different

calculation, but I think legally the court, in looking at the

breakdown and looking at the facts in this particular case,

finds that probation's calculation is accurate.

Next let me address, there were several objections made by

Mr. Leen to the presentence report. The court has reviewed

all of those objections. There are basically four different

objections. The last one, No. 4, by my count, is an

objection to the criminal history category, criminal history

points. Looking at different paragraphs, they should be

counted as one sentence on the same day, et cetera, et

cetera. In looking at that carefully, the court finds that

probation's response is accurate. By that I mean that prior

sentences are always counted separately if sentences were

imposed for offenses that were separated by an intervening

arrest. If there is no intervening arrest, prior sentences

are counted separately, unless they result from offenses

contained in the same charging document, or the sentences


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were imposed in the same day.

And so upon reviewing this, in this particular case, I

think probation got it absolutely right. In terms of whether

or not this results in double counting is another objection

made by counsel for the defense. The court is satisfied that

they do not count as double counting, when applied together.

So the court, in looking at the other objections, are

basically objections to the wording in several of the

paragraphs. For example, paragraph 9, defense objects to the

words, "And two assault rifles," and objects to the entire

last sentence of the paragraph. In paragraph 92 defendant

objects to the use of the name Emani, E-M-A-N-I, and also

some additional language. The court finds, once again, that

the report of the probation officer is accepted in its

entirety. I understand the defendant has these objections.

They are captured by the probation officer in those final two

pages there of the presentence report. But the court will

accept the PSR in its entirety.

All right. Now, the factors the court is to consider:

The nature and circumstances of the offense. Extremely

serious offense. Yes, I know he was trying to get money. I

don't have any doubt that's what he was trying to do. At the

same time, if we're talking about putting deadly weapons in

the hands of people that, to Mr. Gardner's knowledge, are

going to take them to a place where, over the last five years


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there's been almost 50,000 people killed using weapons from

the United States, primarily. It is a very serious offense.

The court is to look at the history and characteristics of

the defendant. As summarized by our Assistant United States

Attorney, Mr. Gardner has a very long criminal history. By

my count he has somewhere around 17 prior criminal

convictions, was on warrant status at the time of this

particular offense. I don't think he's ever had a real job.

Given his prior history, the last thing he needs to have in

his possession are deadly weapons. And that's why this

particular law exists.

The court is to consider the need for the sentence to

reflect the seriousness of the offense, promote respect for

the law, and provide just punishment, the need for the

sentence to afford deterrence to criminal conduct, to protect

the public from the defendant, to provide him with any

educational and vocational training, medical care, or other

correctional treatment in a most effective manner. The court

is always to consider the types and kinds of sentences

available, the need to provide any restitution to victims,

which I don't think is applicable here. And, finally, the

need to avoid any unwarranted sentence disparity among

defendants with similar conduct and similar records.

The court has taken a close look at all of those factors

in coming up with what it feels is the appropriate sentence


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in this particular case. And as indicated, in looking at the

history and characteristics of the defendant, he is a

lifelong resident here. He did have a tough childhood. He

was raised without a father, for the most part. His mom had

to work two jobs to get by, understanding she had to be mom

and dad and bring home the money just to have them survive.

He understands, from his statements that he's made here in

court, that he's basically putting his children in almost the

very same position as he found himself in.

Probation also discloses a potentially undiagnosed mental

health concern, post traumatic stress disorder, for example.

And the court has looked at that as well. His mother has

described his anger issues. And maybe part of the problem

would indicate that the defendant might very well benefit

from the comprehensive mental health evaluation. His drug

use, reported drug use going back to early teenage years,

probably has been one of the most -- in his life in trying to

turn his life around, do something positive -- that ongoing

drug use has probably been the biggest hurdle in his life.

And his inability to get past that has apparently led to his

lifetime of unemployment, or at least legal employment.

At the same time, in looking at his criminal history, the

court is quite aware that this is probably the longest time

he's been held in custody. I don't think he ever realized,

during the commission of these offenses, this offense, that


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he could end up in federal court and be looking at a

guideline range as we have here.

Taking all of those factors into consideration, the court

will impose the following sentence. He will be placed on

three years of supervised release. Restitution is not

applicable. The court waives the imposition of any fine,

finding he does not have the financial ability to pay a fine.

The court must impose a $100 penalty assessment.

Probation recommends eight special conditions of

supervised release. The court feels that each of those is

appropriate, and will impose them exactly as set out in

probation's PSI. Let me briefly summarize those for purposes

of our record. No. 1, he cooperate in the collection of DNA.

No. 2, he's prohibited from possessing any firearms or

destructive devices. No. 3, within 15 days of going on

supervised release he will submit to one drug and alcohol

test, at least two periodic tests thereafter, never to exceed

eight valid tests per month. No. 4, he will participate, if

so instructed by probation, in any program approved by them

for treatment of addiction, drug dependency, or substance

abuse. No. 5, he will submit to reasonable searches,

conducted at a reasonable time, in a reasonable manner, based

on reasonable suspicion. No. 6, again, if so directed by

probation he will participate, as directed by them, in any

mental health program approved by them. No. 7, he will


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provide probation with access to any and all requested

financial information. And, finally, No. 8, he is not to be

self-employed or employed by friends, relatives, associates,

or people previously known to him, unless that is approved in

advance by probation. In fact, he is not to accept any, or

begin any employment without prior approval of U.S.

Probation. And that employment will be subject to continuous

review and verification by U.S. Probation.

Counsel, that only leaves the amount of custodial time to

impose. The court feels that the advisory range of 84 to 105

is, in this particular case, not appropriate for him. For

all the reasons cited, there are some positives as

Ms. Johnson has indicated, he does have, I think, the

intelligence, understands the tools that he needs to get to

be able to turn his life around. However, balancing that

against the very, very serious nature of this particular

offense, and looking at his criminal history, the court feels

that a sentence of 70 months is appropriate, and will impose

70 months with credit for all time served on this cause

number.

Mr. Leen, do you have request for placement in a

particular facility?

MR. LEEN: We would ask that the court designate

Sheridan as a recommended facility. And the probation office

did recommend, although he may not get credit for having


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completed the program, the RDAP program would be a good

thing. So we'd ask that the court recommend that also.

THE COURT: Given the nature of the offense, given

his prior history, he may not qualify for Sheridan. But I'll

put it this way, we'll recommend Sheridan or the closest

federal facility to the Seattle area.

MR. LEEN: Thank you, Your Honor.

THE COURT: And RDAP, I think, makes a lot of sense.

The court will make that recommendation to BOP as well.

MR. BROWN: Permission to approach, Your Honor?

THE COURT: Please.

Mr. Brown, I don't believe in my review of the plea

agreement of the parties, that Mr. Gardner waived his right

to appeal the sentence.

MR. BROWN: That's correct, Your Honor.

THE COURT: Counsel, two final matters for the

record. No. 1, as the proposed judgment form accurately

reflects the sentence imposed, it's been dated and signed by

the court.

No. 2, Mr. Gardner, you cannot appeal the plea of guilty,

but you can appeal the sentence this court has just imposed,

or any aspect of it. If you choose to do so, just let your

counsel know that you want to appeal it, he knows fully well

how to start that process. You are capable of doing it on

your own, even without his help. Just notify the clerk of


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our court you wish to file a notice of appeal to the

sentence. The critical part is if you don't do that within

ten days of today's date, you may forever waive or give up

your right to appeal the sentence. Do you understand?

THE DEFENDANT: Yes.

THE COURT: Anything further from the government?

MR. BROWN: No, Your Honor. Thank you.

THE COURT: Anything further from the defense?

MR. LEEN: No, Your Honor. Thank you.

(The proceedings were adjourned.)

C E R T I F I C A T E

I certify that the foregoing is a correct transcript from

the record of proceedings in the above-entitled matter.

/s/ Debbie Zurn October 3, 2015

Debbie Zurn, Court Reporter Dated


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ORDER DENYING § 2255 MOTION - 1

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

DJUAN O. GARDNER

Petitioner,

v.

UNITED STATES OF AMERICA

Respondent.

CASE NO. C13-1730 RSM

ORDER DENYING § 2255 MOTION (CR12-00098 RSM)

I. INTRODUCTION

This matter comes before the Court on pro se Petitioner Djuan Gardner’s Motion to

Vacate, Set aside, or Correct Sentence under 28 U.S.C. § 2255 (Dkt. # 1) and his Motion seeking

leave to amend his response brief (Dkt. # 9). Petitioner challenges the seventy month sentence

imposed by this Court upon his guilty plea to one count of Being a Felon in Possession of a

Firearm, in violation of 18 U.S.C. § 922(g)(1). Petitioner asserts that his counsel provided

ineffective assistance by (1) failing to seek dismissal of the indictment and (2) failing to

challenge two enhancements used by the Court to calculate Petitioner’s advisory Guidelines’

Case 2:13-cv-01730-RSM Document 10 Filed 07/23/14 Page 1 of 12 Case: 15-72559, 10/30/2015, ID: 9740290, DktEntry: 9-4, Page 1 of 12(47 of 58)

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range. The Court has considered the entirety of the record including the arguments raised in

Petitioner’s motion for leave to amend his response. Although Petitioner’s § 2255 Motion is

timely, it will be denied for the reasons set forth below.

II. BACKGROUND

In January 2012, Petitioner approached a confidential informant (“CI”) and told him that

he had heard that the CI was interested in purchasing firearms. CR Dkt. # 15, ¶ 7(b) (Plea

Agreement). The CI told Petitioner “that he was interested in buying firearms on behalf [of] an

associate with ties to a drug cartel and that [the firearms] would be transported to Mexico.” Id.

On May 24, 2014, Petitioner sold the CI two firearms during a controlled transaction. Id. at ¶

7(c). Based on those events, on April 12, 2012, the Government filed an indictment charging

Petitioner with Being a Felon in Possession of a Firearm. CR Dkt. # 1. The indictment listed six

of Petitioner’s prior felony convictions and alleged that both firearms at issue “had been shipped

and transported in interstate and foreign commerce.” Id. at 1-2. Petitioner was arrested four days

later, and following his initial appearance, he was detained pending trial. CR Dkt. # 5, pp. 10-12.

On May 25, 2012, Petitioner entered a written plea agreement and agreed to plead guilty

as charged in the indictment. CR Dkt. # 15. In that agreement, Petitioner admitted possessing the

two firearms he sold to the CI; admitted he knew those firearms “would be transported to

Mexico” after the sale; and “acknowledge[d] that both [firearms] were not manufactured in the

State of Washington and therefore traveled in interstate or foreign commerce.” Id. at 5. Petitioner

also admitted that he had “multiple felony convictions,” including the six convictions listed in

the indictment and an additional conviction for “Attempting to Elude.” Id. at 5.

The plea agreement contained three stipulations pertaining to the Court’s calculation of

the advisory Guidelines sentencing range. First, the parties agreed Petitioner’s base offense level


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was 20 under USSG § 2K2.1(a)(4) because one of his prior convictions involved a crime of

violence (Attempting to Elude a Police Vehicle). Id. at 5. Second, the parties agreed that a 4-

level enhancement was warranted under USSG § 2K2.1(b)(6) because Petitioner knew the

firearms he sold would be transferred out of the United States. Id. at 5. Third, the parties agreed

that if Petitioner accepted responsibility at sentencing, he would be entitled to a 3-level

downward adjustment under USSG § 3E1.1. Id. at 6. The parties agreed that no other Guidelines

provisions applied to this case, but also acknowledged that the Court would independently

determine Petitioner’s Guidelines range and was not bound by the parties’ stipulations

concerning the Guidelines. Id. at 6. The agreement stated that no promise had been made

regarding what sentence the Court would impose, and that the Court was free to impose any

sentence authorized by law, up to the statutory maximum. Id. at 4.

The parties appeared before the Court for sentencing on October 12, 2012. CR Dkt. # 23.

The Court sentenced Petitioner to a 70-month prison term, followed by three years of supervised

release. Id. The judgment was entered that same day. Id. Petitioner did not appeal the sentence.

III. DISCUSSION

Petitioner asserts that his counsel was ineffective for both failing to challenge the

indictment and for failing to challenge application of two sentencing enhancements that the

parties stipulated to in the plea agreement. As to Petitioner’s indictment argument, he contends

that counsel was ineffective for not mounting an as-applied Commerce Clause challenge to his

felon in possession charge. He contends that the felon-in-possession statute does not apply to

cases where possession of a firearm does not affect interstate commerce. For the sentencing

enhancement challenge, Petitioner contends that counsel was ineffective for failing to investigate

his state court conviction for Attempting to Elude a Police Vehicle. He contends that the crime


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was not a “crime of violence.” He also contends that counsel was ineffective in failing to object

to the 4-level enhancement pursuant to USSG § 2K2.1(b)(6)(A), which was applied based on his

reasonable belief that the firearms would be transferred out of the United States.

A. Legal Standard

The two-part Strickland test governs ineffective assistance of counsel claims that

challenge guilty pleas. Hill v. Lockhart, 474 U.S. 52, 57 (1985). To prevail on such a claim, a

petitioner must show (1) that counsel’s performance was deficient, and (2) that counsel’s

deficient performance prejudiced the outcome of the case. Strickland v. Washington, 466 U.S.

668, 687 (1984). Deficient performance is that which falls below an objective standard of

reasonableness. Id. at 694. To establish that counsel’s deficient performance prejudiced the

defense, a petitioner “must show that there is a reasonable probability that, but for the counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. In cases

where the petitioner enters a guilty plea, the petitioner must show that but for counsel’s

unprofessional errors, he would not have entered the plea. Hill, 474 U.S. at 56.

B. Indictment Challenge

Petitioner argues that counsel was ineffective for not challenging application of the felon-

in-possession statute, 18 U.S.C. § 922(g)(1). He contends that the statute “cannot be

constitutionally applied to cases where the possession [of a firearm] did not affect interstate

commerce.” Dkt. # 8, p. 5. He believes that counsel should have sought dismissal of the

indictment because Petitioner did not possess the firearms outside of Washington.

This argument has been rejected by the Ninth Circuit Court of Appeals on more than one

occasion. To satisfy the interstate commerce element of the felon-in-possession statute, “the

government need only show a ‘minimal nexus that the firearm [had] been, at some time, in

interstate commerce.’ ” United States v. Hanna, 55 F.3d 1456, 1462 (9th Cir. 1995) (quoting


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Scarborough v. United States, 431 U.S. 563, 575 (1977)) (internal quotation marks omitted); see

also United States v. Rousseau, 257 F.3d 925 (9th Cir. 2001). In United States v. Paopao, 469

F.3d 760, 768-69 (9th Cir. 2006), the Court held that 18 U.S.C. § 922(g)(1) was constitutionally

applied where the firearm was manufactured in one state and recovered in another. Thus, the

relevant test considers whether there was commercial movement of the firearm across state lines

at some point, not whether the defendant in possession of the firearm caused the interstate

movement. See id.

Here, Petitioner does not contest that the firearms in this case “had been shipped and

transported in interstate and foreign commerce,” as stated in the indictment and agreed to in the

plea agreement. CR Dkt. # 1, pp. 1-2; CR Dkt. # 15, p. 5. Because Petitioner “acknowledg[ed]

that both [firearms] were not manufactured in the State of Washington” (CR Dkt. # 15, p. 5),

counsel had no sound basis to challenge the interstate commerce element of the felon-in-

possession statute. Accordingly, counsel’s performance was not deficient.

C. Sentencing Enhancement Challenges

1. “Crime of Violence” Enhancement

Petitioner argues that counsel was ineffective for failing to challenge application of the

“crime of violence” enhancement. He believes that the enhancement was improper because (1)

Attempting to Elude is not a “crime of violence” and (2) use of the conviction to both increase

his criminal history score and to elevate his base offense level constituted impermissible double

counting. Neither argument has merit.

First, the Attempting to Elude conviction qualifies as a “crime of violence” under the

Guidelines. A “crime of violence” under USSG § 2K2.1, includes any crime “that presents a

serious potential risk of physical injury to another.” USSG § 4B1.2(a)(2) (the so-called “residual


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clause”). The “definition is almost identical to the wording used to define the term ‘violent

felony’ under the Armed Career Criminal Act of 1984 (ACCA).” United States v. Park, 649 F.3d

1175, 1177 (9th Cir. 2011). In the Ninth Circuit, “we frequently look to cases interpreting the

term ‘violent felony’ to determine whether a particular offense constitutes a ‘crime of violence’

under section 4B1.2a of the Guidelines.” Id.

To determine whether a conviction constitutes a crime of violence under the residual

clause, courts employ the categorical approach. Id. The categorical approach requires

consideration of two criteria. Id. First, the “‘conduct encompassed by the elements of the offense,

in the ordinary case,’ must ‘present[ ] a serious potential risk of physical injury to another.’” Id.

at 1177-78 (quoting James v. United States, 550 U.S. 192, 208 (2007)). Second, the state

conviction “must be ‘roughly similar in kind as well as in degree of risk posed’ to those offenses

enumerated at the beginning of the residual clause—burglary of a dwelling, arson, extortion, and

crimes involving explosives.” Id. at 1178 (quoting Begay v. United States, 553 U.S. 137, 143

(2008)).

In Sykes v. United States, 131 S. Ct. 2267, 2275-76 (2011), the United States Supreme

Court held that a conviction under Indiana’s vehicle flight statute was, as a categorical matter, a

crime of violence under the ACCA’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii). Indiana’s

vehicle flight statute, Ind. Code § 35-44-3-3(b)(1), makes the following a felony:

A person who knowingly or intentionally:

flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop; [and] the person uses a vehicle to commit the offense.

To determine whether a conviction under the Indiana statute qualified as a crime of violence, the

Supreme Court reasoned that a risk of violence is inherent to vehicle flight from law enforcement


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officers, and that the risk posed categorically aligned with the risks associated with the crimes

specifically identified in the ACCA. Sykes, 131 S. Ct. at 2275-76.

Similarly, the Ninth Circuit Court of Appeals held that a conviction under Oregon’s

vehicle flight statute constituted a violent felony under the ACCA. U.S. v. Snyder, 643 F.3d 694

(2011). In Snyder, the Ninth Circuit determined that the statutory language of ORS 811.540(1)

was “similar enough” to the Indiana statute such that Sykes controlled. Id. at 699. The same is

true here.

Washington’s Attempting to Elude statute criminalizes “any driver of a motor vehicle

who willfully fails or refuses to immediately bring his or her vehicle to a stop and who drives his

or her vehicle in a reckless manner while attempting to elude a pursuing police vehicle, after

being given a visual or audible signal to bring the vehicle to a stop.” RCW 46.61.024(1). Unlike

the statutes at issue in Sykes and Snyder, the Washington statute punishes conduct that poses a

greater risk of violence because it requires a fleeing driver to be driving the “vehicle in a reckless

manner.” Id. Under Sykes’ logic, if potentially non-reckless conduct poses an inherent risk of

violence that fits within the scope of the ACCA’s residual clause, then reckless evasion in a

vehicle also poses an inherent risk of violence. It follows that a conviction under Washington’s

statute also qualifies as categorical violent felony. Thus, counsel was not deficient for failing to

challenge the “crime of violence” enhancement.

In addition, to the extent Petitioner argues that counsel generally failed to investigate the

Attempting to Elude conviction, the record makes clear that counsel was aware of the conviction,

discussed its relevance to the Court, and requested a lower sentence on the basis that the

enhancement unfairly increased Petitioner’s base offense level. See CR Dkt. # 22 (Defendant’s

Sentencing Memorandum).


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Second, use of the Attempting to Elude conviction to increase Petitioner’s criminal

history score and enhance his base offense level was not impermissible double counting. The

relevant Guideline explains that “[p]rior felony conviction(s) resulting in an increased base

offence level . . . are also counted for purposes of determining criminal history points.” USSG §

2K2.1, cmt., n.10. Further, the Ninth Circuit has “rejected [the] claim that the use of a prior

conviction as a basis for a sentencing enhancement and for calculating a defendant’s criminal

history score constitutes impermissible double counting.” United States v. Garcia-Cardenas, 555

F.3d 1049, 1050 (9th Cir. 2009) (citing United States v. Luna-Herrera, 149 F.3d 1054, 1055-56

(9th Cir. 1998)). Accordingly, counsel was not ineffective for failing to challenge application of

the crime of violence enhancement.

2. “Reason to Believe” Firearms Would be “Transported Outside of the United States” Enhancement

Petitioner contends that counsel should have challenged the 4-level enhancement under

USSG § 2K2.1(b)(6)(A) because (1) it amounted to double counting and (2) the Government

failed to include the enhancement in the Indictment. Taking Petitioner’s double counting

argument first, Petitioner argues that the felon-in-possession statute punishes possession of a

firearm with a connection to interstate commerce and the enhancement punishes the same

interstate commerce connection. Petitioner believes this constituted improper double counting.

“Double counting occurs where the Guidelines use the same conduct more than once to increase

the severity of a sentence.” United States v. Williams, 693 F.3d 1067, 1074 (9th Cir. 2012)

(internal quotation mark and citation omitted). “If . . . it is possible to be sentenced under a

particular offense guideline without having engaged in a certain sort of behavior, such behavior

may be used to enhance the offense level . . . .” United States v. Reese, 2 F.3d 970, 895 (9th Cir.

1993).


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Here, the underlying offense punished possession of a firearm that was used in interstate

commerce. The enhancement, however, applies where a defendant “transferred any firearm” with

“reason to believe that it would be transported out of the United States.” USSG §

2K2.1(b)(6)(A). Because it is possible for a defendant to be found guilty of the felon-in-

possession statute without engaging in the conduct proscribed by the enhancement—transferring

the firearm with a reasonable belief that the firearm would leave the country—no double

counting problem exists.

In the § 2255 Motion, Petitioner suggests that counsel was deficient by failing to object to

the § 2K2.1(b)(6)(A) enhancement because the enhancement was not mentioned in the

indictment. This argument also fails. The Government need not allege specific provisions of the

Sentencing Guidelines in the indictment or prove them to a jury unless application of a provision

would “raise a defendant’s total sentence to a term longer than the statutory maximum.” United

States v. Rosas, 615 F.3d 1058, 1065 (9th Cir. 2010); see also United States v. Booker, 543 U.S.

220 (2005). The maximum sentence for Petitioner’s felon-in-possession conviction is 10 years

(120 months). See 18 U.S.C. §§ 922(g)(1), 924(a)(2). The Court sentenced Petitioner to 70

months, which was well below the statutory maximum. Thus, the Government was not required

to allege the enhancement in the indictment.

D. Petitioner’s Motion to Amend Response Brief

Several months after Petitioner mailed his response brief and several months past the

deadline for filing a response, Petitioner filed a Motion to Amend his response brief. Dkt. # 9.

Although the Court assumes that Petitioner’s reason for seeking amendment was to enlist the aid

of a jailhouse lawyer to draft a response to the arguments set out in the Government’s Answer,

Petitioner did not address why the motion was untimely. See id. In the proposed amended

response, he asserts one additional argument that was not raised in either the § 2255 motion, or


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the first response brief. He now contends that counsel was ineffective for failing to argue that the

USSG § 2K2.1(b)(6)(A) enhancement is void for vagueness.

The Court has discretion to consider untimely filings made by pro se parties. The Ninth

Circuit has “consistently held that procedural requirements should be more liberally construed

for pro se litigants.”1 Abassi v. INS, 305 F.3d 1028, 1032 (9th Cir. 2002) (citing Balistreri v.

Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). Although the Court has considered

Petitioner’s newly-raised argument, the Court finds the argument without merit as the plain

language of § 2K2.1(b)(6)(A) has been satisfied. Petitioner contends that the “reason to believe”

language of the statute is ambiguous because it does not establish when a defendant must know

that the firearms would be transported out of the country. He believes the language could be read

in one of two ways: that the defendant must have a “reason to believe” at the time of the transfer,

or that the defendant may have a “reason to believe” based on facts known to him before the time

of the transfer.

The argument is unpersuasive. In Petitioner’s case, he agreed that he was told “that [the

CI] was interested in buying firearms on behalf [of] an associate with ties to a drug cartel and

that [the firearms] would be transported to Mexico.” CR Dkt. # 15, ¶ 7(b). Although the CI may

not have restated this information at the time of the controlled buy, Petitioner admitted that he

knew the firearms would be transported to Mexico before he sold the firearms. This admission

satisfies the plain language of § 2K2.1(b)(6)(A). See, e.g., United States v. Mendoza, 556 F.

App'x 326, 327 (5th Cir. 2014) (“Based on the plain language of § 2K2.1(b)(6)(A), the UA's

statement that he told [the defendant] the firearms were going to Mexico provided sufficient


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support for the enhancement for ‘transferr[ing] any firearm or ammunition with knowledge,

intent, or reason to believe that it would be transported out of the United States.’”).1

E. Evidentiary Hearing

A petitioner is entitled to an evidentiary hearing only if the petitioner (1) alleges specific

facts which, if true, would entitle the petitioner to relief and (2) the petition, files, and record of

the case do not conclusively show that the petitioner is not entitled to relief. 28 U.S.C. § 2255.

For the reasons stated above, Petitioner has failed to “allege specific facts which, if true, would

entitle him to relief.” United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003).

Accordingly, no evidentiary hearing is required.

F. Certificate of Appealability

A petitioner seeking post-conviction relief under § 2255 may appeal a district court’s

dismissal of the petition only after obtaining a certificate of appealability. A certificate of

appealability may be issued only where the petitioner has made “a substantial showing of the

denial of a constitutional right.” See 28 U.S.C. § 2253(c)(3). The standard is satisfied “by

demonstrating that jurists of reason could conclude the issues presented are adequate to deserve

encouragement to proceed further.” MillerEl v. Cockrell, 537 U.S. 322, 327 (2003). The Court

concludes that Petitioner has not demonstrated that he is entitled to a certificate of appealability

under the applicable standard.

1 Petitioner also contends that by selling the firearms to the CI, he did not satisfy the “transfer” element of § 2K2.l (b)(6)(A) because “when looking at the Webster dictionary meaning ‘cause to pass from one to another’ it infers [sic] to pass not to sale[sic].” This argument is frivolous; Petitioner admitted that he possessed the firearms and gave them to the CI during the controlled buy. CR. Dkt. # 15.


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IV. CONCLUSION

Having considered the motion, the responses thereto, and the balance of the file, the

Court hereby finds and ORDERS:

(1) Petitioner’s § 2255 Motion (Dkt. # 1) is DENIED and this matter DISMISSED;

(2) A Certificate of Appealability is DENIED;

(3) The Clerk is directed to send a copy of this Order to all counsel and to the pro se

Petitioner.

Dated this 23rd day of July 2014.

A RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE


in the united states court of appeals … states of america, respondent. ... the presentence...

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