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United States v. Foust

United States District Court, D. Kansas

August 20, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT CAMERON FOUST, Defendant.

          MEMORANDUM AND ORDER ON MOTION TO VACATE

          The Honorable J. Thomas Marten United States District Court

         On August 26, 2009 an Indictment was entered against defendant Robert Cameron Foust charging him with four counts: (1) Hobbs Act robbery in violation of 18 U.S.C. § 1951; (2) brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c); (3) felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a); and (4) possession of a stolen firearm in violation of 18 U.S.C. § 922(j) and §924(a)(2). (Dkt. 16). Mr. Foust entered a plea of guilty under Fed. R. Crim. P. 11(c)(1)(C) to counts 1, 2, and 3 of the Indictment on December 8, 2009. (Dkt. 44). The parties to the Plea Agreement jointly recommended to the court a prison sentence of 32 years, or 384 months, as an appropriate disposition of the case. (Dkt. 44, p.4-5). Mr. Foust was sentenced pursuant to the terms of the Plea Agreement on March 2, 2010 to a term of 150 months in custody on count 1, 84 consecutive months in custody on count 2, and 150 consecutive months in custody on count 3 for a total term of 384 months. (Dkt. 49).

         Subsequent to the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), Mr. Foust filed a petition (Dkt. 53) pursuant to 28 U.S.C. § 2255 asking the Court to vacate: (1) his conviction for brandishing a firearm in furtherance of a crime of violence pursuant to 18 U.S.C. § 924(c), and (2) his Armed Career Criminal sentence enhancement pursuant to 18 U.S.C. § 924(e). (Dkt. 53). The court stayed Mr. Foust's petition at the parties' request, as the appellate courts were expected to issue a ruling dispositive of the issues in the petition. (Dkt. 57.)[1]

         The Supreme Court decided United States v. Davis on June 24, 2019. 139 S.Ct. 2319 (2019). The parties agree, and the Court concurs, that controlling authority now exists which directs the disposition as to both claims of Mr. Foust's petition.

         Mr. Foust's first claim, that his § 924(c) conviction for brandishing a firearm during the commission of a crime of violence is constitutionally infirm, is DENIED. Mr. Foust asserts that his § 924(c) conviction is invalid because it is parasitic upon his conviction for Hobbs Act robbery (see 18 U.S.C. § 1951) which does not qualify as a crime of violence under either § 924(c)(3)(A)'s “force” or “elements” clause or § 924(c)(3)(B)'s “residual” clause. Davis struck down the residual clause of § 924(c)(3)(B) as unconstitutionally vague. 139 S.Ct. at 2336. Precedent decided subsequent to Mr. Foust's petition, however, makes clear that a Hobbs Act robbery conviction requires proof that the defendant used, attempted to use, or threatened to use physical force. See § 924(c)(3)(A); see also United States v. Harris, 761 Fed.Appx. 852 (10th Cir. 2019) (Hobbs Act robbery is a crime of violence under § 924(c)(3)(A)'s elements clause); United States v. Melgar-Cabrera, 892 F.3d 1053, 1060-66 (10th Cir. 2018) (same); United States v. Jefferson, 911 F.3d 1290, 1296-99 (10th Cir. 2018) same); Stokeling v. United States, 139 S.Ct. 544 (2019) (finding a Florida robbery statute very similar to Hobbs Act robbery requires proof the defendant used physical force). Because the Davis decision left the force clause of § 924(c)(3)(A) intact, and because Hobbs Act robbery is a crime of violence pursuant to that clause, Mr. Foust's conviction for brandishing a firearm in furtherance of Hobbs Act robbery (a crime of violence), was constitutionally proper.

         The second argument advanced by Mr. Foust contends that the Armed Career Criminal Act (ACCA) sentence enhancement under 18 U.S.C. § 924(e) was improperly applied to his Count 3 conviction for felon in possession of a firearm in violation of 18 U.S.C. §§922(g)(1) and 924(a). Section 924(e) indicates:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years, and, notwithstanding any other provision of law, the court shall not suspend the sentence of, or grant a probationary sentence to, such person with respect to the conviction under section 922(g).

18 U.S.C. §924(e)(1). The ACCA enhancement was applied to Mr. Foust's Count 3 conviction pursuant to 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. The predicate offenses for the enhancement were three convictions for third-degree burglary under Alabama law. (See Dkt. 47, PSR, ¶ 67, 86, 98, 99). The government agrees with Mr. Foust's position that the sentencing enhancement was improperly applied in the wake of Johnson.[2]

         Before Johnson, a state law burglary conviction could qualify as a crime of violence in two ways. First, a defendant's sentence could be enhanced under 18 U.S.C. § 924(e)(2)(B)(i) if he “was convicted of a crime having ‘the basic elements' of generic burglary-i.e., unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). Second, even where the defendant had been convicted of a burglary that did not meet the elements of the generic offense, an enhancement was available under the residual clause of § 924(e)(2)(B)(ii), because “‘by its nature,' burglary ‘involves a substantial risk that the burglar will use force against a victim in completing the crime.'” United States v. Maldonado, 696 F.3d 1095, 1100 (10th Cir. 2012) (quoting Leocal v. Ashcroft, 543 U.S. 1, 10, 125 S.Ct. 377, 160 L.Ed.2d 271 (2004)) (abrogated by United States v. Copeland, 921 F.3d 1233, 1250-51 (10th Cir. 2019) (noting that court's prior reliance upon the residual clause to enhance a sentence was error under the Johnson decision)).

         The Tenth Circuit's rule that non-generic burglary qualified as a crime of violence under the residual clause was based on the Supreme Court's decision in James v. United States, 550 U.S. 192 (2007). James held that attempted burglary, though it did not meet the generic definition of the crime, qualified as a violent felony because it created a substantial risk of the use of force. Id. at 208; see also Maldonado at 1101 (relying on James to conclude that non-generic California burglary was a violent felony under the residual clause). In the process of excising the residual clause, the United States Supreme Court's decision in Johnson overruled James. See Johnson, 135 S.Ct. at 2563. Subsequent to the Johnson decision, then, non-generic burglaries which qualified as § 924(e) predicates only under the residual clause of § 924(e)(2)(B)(ii) can no longer support an ACCA enhancement.

         The parties agree, and the court concurs, that Mr. Foust's prior Alabama third-degree burglary convictions do not fit the generic definition of burglary that would qualify them as predicates under the ACCA.[3] See United States v. Howard, 742 F.3d 1334, 1349 (11th Cir. 2014) (“the statute is non-generic and indivisible, which means that a conviction under Alabama Code § 13A-7-7 cannot qualify as generic burglary under the ACCA.”); United States v. Jones, 743 F.3d 826, 828 (11th Cir. 2014) (“treating the use of Alabama convictions for third degree burglary as violent felonies for ACCA purposes is plain error”). It follows that Mr. Foust's prior Alabama burglary convictions would qualify as ACCA predicates only under the unconstitutional § 924(e) residual clause. Consequently, in the wake of the Johnson decision, the ACCA enhancement was improperly applied to Mr. Foust's Count 3 conviction. Mr. Foust's petition, as to his second argument, is GRANTED.

         The parties have jointly requested that the Court re-sentence Mr. Foust to 285 months. The original sentence in this case of 384 months was the result of a binding plea agreement. (See Dkt. 44). The court's sentence for Counts 1 and 2 remains unaffected.

         (Image Omitted)

         As to Count 3, the parties agree that removing the unconstitutional ACCA enhancement would result in a new base offense level of 14. See USSG § 2K2.1(a)(4). But, because the sentencing guidelines group Count 1 with Count 3, (see Dkt. 47, PSR ¶ 56), the highest offense level applicable to either grouped offense predominates. See U.S.S.G. ยง3D1.2. The court consequently ...


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