United States District Court, D. Utah
the court is Petitioner Russell Pikyavit's Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255. (Docket No. 1).
MEMORANDUM DECISION AND ORDER DENYING
PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255
N. Parrish United States District Court Judge
is currently incarcerated in federal prison. In 2007,
Petitioner was convicted of being a felon in possession of
ammunition under 18 U.S.C. § 922(g)(1) and sentenced to
180 months of incarceration. Though the offense itself
carried a penalty of at most 120 months in prison, the court
enhanced Petitioner's sentence by sixty months pursuant
to the Armed Career Criminal Act (ACCA), which provides a
mandatory minimum of fifteen years for any individual
convicted under § 922(g)(1) who also has three previous
convictions “for a violent felony or a serious drug
offense, or both, committed on occasions different from one
another.” Id. § 924(e)(1). Court
documents did not indicate which of Petitioner's prior
convictions justified the sentence, but his criminal history
included at least one conviction for distribution of a
controlled substance, two convictions for assault by
prisoner, and a conviction for burglary.
26, 2015, after Petitioner had served approximately nine
years of his fifteen-year sentence, the Supreme Court decided
Johnson v. United States (Johnson II), 135 S.Ct.
The Court there held that the so-called residual clause of
§ 924(e) of the ACCA was unconstitutionally vague.
Id. at 2257. The next year, the Court held that the
Johnson II decision had announced a substantive rule
that must be applied retroactively on collateral review of
sentences imposed under the unconstitutional residual clause.
Welch v. United States, 136 S.Ct. 1257, 1265 (2016).
27, 2016, Petitioner filed this Motion to Vacate, Set Aside,
or Correct Sentence pursuant to 28 U.S.C. § 2255(a),
arguing that Johnson II rendered his sentence under
the ACCA unconstitutional. (Docket No. 1). The government
opposed Petitioner's Motion in a memorandum filed
September 14, 2016, arguing that Petitioner's sentencing
enhancement under the ACCA was not affected by Johnson
II because his convictions for assault by prisoner were
still categorically violent felonies under the Act. (Docket
No. 7). Petitioner filed a reply to the government's
opposition memorandum on November 14, 2016. (Docket No.
The court heard oral argument on the Motion on January 10,
2017, and now renders a decision under jurisdiction granted
by § 2255(a).
asks this court to vacate and correct his 180-month sentence
by striking the sixty-month enhancement applied to his
sentence pursuant to the ACCA. The ACCA requires a
fifteen-year mandatory minimum sentence when a defendant
charged under 18 U.S.C. § 922(g) has a criminal history
that includes “three previous convictions . . . for a
violent felony or a serious drug offense.” 18 U.S.C.
§ 924(e)(1); see also United States v. Harris,
844 F.3d 1260, 1262 (10th Cir. 2017) (“The ACCA
requires a fifteen-year mandatory minimum sentence when the
defendant has [a criminal history that includes] three or
more qualifying ‘violent felonies.'” (quoting
§ 924(e)(1))). Under the ACCA, a “violent
felony” is defined as “any crime punishable by
imprisonment for a term exceeding one year, ” that
falls under one of three categorical clauses listed under
§ 924(e)(2)(B). See Id. § 924(e)(1)-(2).
First, the “elements” or “force”
clause indicates that a crime of conviction qualifies as a
violent felony if it “has as an element the use,
attempted use, or threatened use of physical force against
the person of another.” Id. §
924(e)(2)(B)(i). Next, the “enumerated-offenses”
clause outlines certain generic offenses that are
categorically violent felonies under the ACCA, such as
“burglary, arson, . . . extortion, [or another crime
which] involves the use of explosives.” Id.
§ 924(e)(2)(B)(ii). Finally, the “residual”
clause defines as a violent felony any crime that
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
Id. As described above, the Supreme Court recently
held that “imposing an increased sentence under the
residual clause of the Armed Career Criminal Act violates the
Constitution's guarantee of due process.”
Johnson II, 135 S.Ct. at 2563. The Court later held
that this decision applied retroactively to sentences imposed
pursuant to the residual clause. Welch, 136 S.Ct. at
argues that, after Johnson II, he does not have
three convictions that would qualify as a violent felony or
serious drug crime, invalidating his previous sentencing
enhancement under the ACCA. Petitioner's criminal history
includes convictions in Utah state court for several
different felonies that could have necessitated a sentencing
enhancement under § 924(e)(1) prior to Johnson
II: a conviction for burglary in 1983, a conviction for
assault by prisoner in 1996, a conviction for distribution of
a controlled substance in 1997, and another conviction for
assault by prisoner in 2000. Neither party disputes that
Petitioner's conviction for distribution of a controlled
substance qualifies as a “serious drug offense”
under § 924(e)(1). Instead, Petitioner and the
government devote the bulk of their arguments to the two
assault by prisoner convictions, rightly concluding that the
status of these convictions as violent felonies under §
924(e)(1) is dispositive of Petitioner's
At the time of Petitioner's conviction,  Utah's
assault by prisoner statute provided:
Any prisoner who commits assault, intending to cause bodily
injury, is guilty of a felony in the third degree.
Uta h Code § 76-5-102.5 (1995). An element of this
offense is the commission of an assault. At the time of
conviction,  assault was defined as:
(a) [A]n attempt, with unlawful force or violence, to do
bodily injury to another;
(b) a threat, accompanied by a show of immediate force or
violence, to do bodily injury to another; or (c) an act
committed with unlawful force or violence, that causes or
creates a substantial risk of bodily injury to another.
Id. § 76-5-102 (1995). Additionally,
“bodily injury” was defined in the Utah Code as
“physical pain, illness, or any impairment of physical
condition.” Id. § 76-5-101 (1995).
argues that his previous convictions under the assault by
prisoner statute could only qualify as violent felonies under
the unconstitutional residual clause and, as a result, his
enhanced 180-month sentence must be vacated. The government
counters that Utah's assault by prisoner statute
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another, ” see 18 U.S.C. §
924(e)(2)(B)(i), and therefore Petitioner's convictions
for that crime properly qualify as violent felonies under the
elements clause. Both parties acknowledge that sentences
imposed pursuant to the residual clause are unconstitutional
and assault by prisoner is not an enumerated offense under
§ 924(e)(2)(B)(ii). As a result, Petitioner's
sentencing enhancement may survive only if, as the government
argues, assault by prisoner may properly be categorized as a
violent felony under the elements clause. See
Harris, 844 F.3d at 1262-63 (“Because Johnson
II eliminated . . . the residual clause[, ] . . . prior
residual-clause convictions must now stand or fall based on
an analysis under the elements clause.”). Therefore,
the question before the court is whether Utah's assault
by prisoner statute “has as an element the use,
attempted use, or threatened use of physical force against
the person of another” as required by the elements
clause. See § 924(e)(2)(B)(i).
Tenth Circuit has previously held, in an unpublished opinion,
that Utah's assault by prisoner statute is categorically
a violent felony under the ACCA because it requires the
“‘commission of assault, ' which by
definition requires the use of force.” United
States v. Tahguv, 264 F. App'x 719, 723 (10th Cir.
2008) (unpublished) (quoting Utah Code § 76-5-102.5).
Adopting this reasoning, two other courts in this district
have recently concluded that assault by prisoner is
categorically a violent felony under the elements clause.
See Montoya v. United States, No. 1:16-cv-00084-TC,
2016 WL 6810727 at *7-8 (D. Utah Nov. 17, 2016)
(unpublished); Ama v. United States, 149 F.Supp.3d
1323, 1328 (D. Utah 2016), appeal docketed,
No. 16-4039 (10th Cir. Mar. 29, 2016). Most recently, another
court in this district held that assault by prisoner is not
categorically a violent felony because it does not
require the use or threatened use of physical force.
Horrocks v. United States, No. 2:16-cv-00667-DS (D.
Utah Jan. 9, 2017) (oral ruling vacating petitioner's
sentence), appeal docketed, No. 17-4017 (10th Cir.
Feb. 9, 2017). Petitioner correctly asserts that none of
these cases are binding on this court. See DUCivR
7-2(a) (“Unpublished opinions are not precedential, but
may be cited for their persuasive value.”); Camreta
v. Greene, 563 U.S. 692, 709 n.7, 131 S.Ct. 2020 (2011)
(indicating that federal district court decisions are not
binding on courts within the same judicial district). He also
insists that none of the cases holding that assault by
prisoner is categorically a violent felony have clearly
addressed the specific substantive arguments he has raised.
Thus, he requests that this court independently evaluate
whether Utah's assault by prisoner statute qualifies as a
violent felony under the elements clause.
determine whether Utah's assault by prisoner statute is a
violent felony under the elements clause, the court must
employ a categorical approach. Harris, 844 F.3d at
1263 (citing Descamps v. United States, 133 S.Ct.
2276, 2283 (2013)). This categorical approach requires an
evaluation of both federal and state la w. See Id.
at 1264. The court first looks to federal law to define the
phrase “use, attempted use, or threatened use of
physical force against the person of another” as it
appears in § 924(e)(2)(B)(i). See Johnson v. United
States (Johnson I), 559 U.S. 133, 138 (2010). Then, in
order to determine whether a particular state offense falls
under the federal definition, the court looks to state law to
identify the “substantive elements” of the
offense. Harris, 844 F.3d at 1264 (citing
Johnson I, 559 U.S. at 138). Finally, the court
determines whether the state offense is a “categorical
match” with the federal definition of a violent felony
under the elements clause. See Moncrieffe v. Holder,
133 S.Ct. 1678, 1684 (2013). This final inquiry must be
conducted by viewing the state offense “in the
abstract, ” id., “focusing on the
elements of the crime of conviction, not the underlying
facts, ” Harris, 844 F.3d at 1263 (citing
Descamps, 133 S.Ct. at 2283). Accordingly, the court
“must presume that the [state] conviction ‘rested
upon [nothing] more than the least of th[e] acts'
criminalized, and then determine whether even those acts are
encompassed by” the federal definition.
Moncrieffe, 133 S.Ct. at 1684 (alterations in
original) (quoting Johnson I, 559 U.S. at 137).
Nevertheless, the ...