United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
BENSON UNITED STATES DISTRICT JUDGE.
Judge Dee Benson This case is before the Court on Scott
Sanders' Motion to Vacate, Set Aside, or Correct Sentence
Pursuant to 28 U.S.C. § 2255. Having considered the
motion and pleadings, having reviewed the file, and being
otherwise fully informed, the court enters the following
Memorandum Decision and Order.
March 26, 2014, Mr. Sanders was charged in a three-count
indictment with two counts of felon in possession of firearms
and ammunition in violation of 18 U.S.C. § 922(g)(1),
and one count of possession of methamphetamine in violation
of 21 U.S.C. § 844(a). (Case No. 1:14-CR-00016-DB, Dkt.
No. 1.) Prior to this indictment, Mr. Sanders had been
convicted of three crimes that would qualify as
“violent felonies” under the then-applicable
interpretation of the Armed Career Criminal Act
(“ACCA”). Two of the three crimes were failure to
stop at the command of an officer convictions, which
qualified as violent felonies pursuant to the residual clause
of the ACCA. See United States v. Wise, 597 F.3d
1141 (10th Cir. 2010) (holding that the Utah statute related
to Failure to Stop at the Command of an officer was a crime
of violence pursuant to USSG 4B1.2(a)). The parties
understood that, under the then-applicable law, Mr. Sanders
was facing a mandatory minimum sentence of 15 years under the
parties engaged in plea negotiations and on November 18,
2014, in an attempt to avoid the mandatory minimum sentence
under the original indictment, Mr. Sanders pled guilty to a
one-count Felony Information charging Possession of a Stolen
Firearm, in violation of 18 U.S.C. § 922(j). (Dkt. Nos.
25, 26.) The plea agreement was pursuant Fed.R.Evid.
11(c)(1)(C), and set a term of 120 months imprisonment, which
was five months above the high end of the guideline range
calculated for the plea. Id. The plea agreement
included a waiver of the right to petition for relief
pursuant to 28 U.S.C. § 2255, except if the case
involved ineffective assistance of counsel. (Dkt. No. 25.) At
the change of plea hearing, Mr. Sanders was placed under
oath, and the court accepted Mr. Sanders' plea as being
knowingly and voluntarily entered. (Dkt. No. 26.)
January 9, 2015, following oral argument on November 5, 2014,
the United States Supreme Court requested additional briefing
in Johnson v. United States, 135 S.Ct. 2551 (2015),
regarding the constitutionality of the residual clause of the
ACCA and set the case for re-argument. Prior to that request,
the Court had twice held that the residual clause is not
vague. See James v. United States, 550 U.S. 192,
210, 127 S.Ct. 1586, 1598, 167 L.Ed.2d 532 (2007)
overruled by Johnson v. United States, 135 S.Ct.
2551 (2015) (“we are not persuaded by Justice
Scalia's suggestion-which was not pressed by James or his
amici-that the residual provision is
unconstitutionally vague.”); Sykes v. United
States, 564 U.S. 1, 15, 131 S.Ct. 2267, 2277, 180
L.Ed.2d 60 (2011) (plurality opinion) overruled by
Johnson v. United States, 135 S.Ct. 2551 (2015) (stating
that the residual clause “states an intelligible
principle and provides guidance that allows a person to
‘conform his or her conduct to the law'”).
Sanders' sentencing hearing proceeded as scheduled on
January 27, 2015. The court accepted the proposed plea
agreement pursuant to Rule 11(c)(1)(C) and imposed a sentence
of 120 months. (1:14-CR-00016-DB, Dkt. No. 30.)
Sanders also had a litany of state charges pending at the
time of his federal sentencing. Those charges were all
subsequently resolved in consideration of the federal
sentence imposed. On March 3, 2015, Mr. Sanders pled guilty
to two counts of 3rd Degree Retail Theft in Davis County. Mr.
Sanders received a sentence of “an indeterminate term
of not to exceed five years” for each of those crimes.
See Dkt. No. 16, Exs. 6, 7, and 13. Both prison
terms were suspended and were ordered to run concurrent with
each other, and both cases noted that “Defendant can
serve out his sentence in the federal system.”
Id., Exs. 6, 7, 13, and 14. On February 24, 2015,
Mr. Sanders pled to two other state charges-Theft by
Receiving Stolen Property, a 2nd Degree Felony, and Failure
to Stop or Respond at Command of Police, a 3rd Degree Felony.
At the date of sentencing on those felony charges, three
additional cases were dismissed, in consideration of Mr.
Sanders' guilty pleas (131901960, 131902358, and
141900144.) Id., Exs. 8 and 11. Mr. Sanders'
federal defender appeared at the state sentencing and
explained Mr. Sanders' 120-month federal sentence. At the
sentencing, “[t]he State agreed to recommend a
suspended prison sentence because of the defendant's
sentence in federal court.” Id. For the 2nd
Degree Felony, Mr. Sanders was sentenced to “an
indeterminate term of not less than one year nor more than
fifteen years, ” and for the 3rd Degree Felony, Mr.
Sanders was sentenced to “an indeterminate term of not
to exceed five years.” Id., Exs. 8, 9, 11, and
12. Both prison sentences were suspended because of the
federal prison sentence imposed. Id.
26, 2015, the Supreme Court overruled prior precedent and
found that the ACCA's residual clause was
unconstitutionally vague. Johnson, 135 S.Ct. 2551
(2015). On January 27, 2016, exactly one year from the date
of his sentencing, Mr. Sanders filed a motion for relief
under 28 U.S.C. § 2255, arguing that he had received
ineffective assistance of counsel because his attorney did
not inform him or the court that the Supreme Court was
considering the constitutionality of the residual clause of
the ACCA in Johnson v. United States. (1:16-CV-12,
Dkt. No. 1.)
2255 allows prisoners in federal custody to move for their
sentences to be vacated, set aside, or corrected if their
“sentence was imposed in violation of the Constitution
or laws of the United States, or ... the court was without
jurisdiction to impose such sentence, or ... the sentence was
in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.” 28 U.S.C. §
2255(a). Here, Mr. Sanders moves to vacate, set aside, or
correct his sentence on one ground-that his counsel was
ineffective for failing to understand, or failing to inform
him or the court of, the import of the possibility of the
ruling in Johnson v. United States, 135 S.Ct. 2551
(2015). To make out a claim for ineffective assistance of
counsel, a petitioner must satisfy two prongs: (1) petitioner
“must show that counsel's representation fell below
an objective standard of reasonableness;” and (2)
petitioner must demonstrate that “any deficiencies in
counsel's performance [were] prejudicial to
[petitioner's] defense.” Strickland v.
Washington, 466 U.S. 668, 688, 692 (1984).
assessing an ineffective assistance of counsel claim
“must be highly deferential” to counsel and make
“every effort…to eliminate the distorting
effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct
from counsel's perspective at the time.”
Id. at 689. The court must also “indulge a
strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.”
Id. Failure to recognize or argue a novel or
unsettled point of law does not amount to a deficient
performance by counsel at sentencing. United States v.
Thomas, 2016 WL 4060192, at *7 (D. Kan. July 29, 2016).
“To hold otherwise would require a level of creative
thinking on the part of defense lawyers that, while perhaps
something to which counsel should strive, goes beyond the
standard contemplated by Strickland.”
the facts of this case, the court cannot find that Mr.
Sanders' representation fell below an objective standard
of reasonableness. At the time Mr. Sanders entered his plea,
the Supreme Court had heard oral argument in
Johnson, but had not provided any definitive
guidance as to the constitutionality of the residual clause
of the ACCA. At the time of Mr. Sanders' sentencing, the
Supreme Court had ordered additional briefing in
Johnson, but had still not reversed its previous
cases holding that the residual clause was constitutional.
Thus, Mr. Sanders' counsel did not disregard any direct
guidance from the Supreme Court. As the United States Supreme
Court has noted, “[i]t will often be the case that even
the most informed counsel will fail to anticipate a
[court's] willingness to reconsider a prior holding,
” but a failure to adapt strategy to anticipate court
rulings is “far from being evidence of
incompetence.” Smith v. Murray, 477 U.S. 527,
536, 106 S.Ct. 2661, 2667 (1986).
even assuming that the writing was on the wall with respect
to the constitutionality of the residual clause of the ACCA,
the court is still not convinced that Mr. Sanders'
counsel was constitutionally compelled to discuss the pending
case with his client or raise the case with the court under
the circumstances of this case. Mr. Sanders pled guilty to
one count of felon in possession of a firearm, and agreed to
a sentence only five months above the top end of the
guideline range. Mr. Sanders was initially charged with two
counts of felon in possession of a firearm and ammunition, as
well as a felony count for possession of methamphetamine.
Although the court is not aware of the precise calculation of
the guideline range under the original indictment, absent the
mandatory minimum imposed under the residual clause of the
ACCA, it stands to reason that it would have been higher than
the information to which Mr. Sanders pled, given that the
original indictment contained two additional felony charges.
And, given the Supreme Court's recent ruling in
Beckles v. United States, 137 S.Ct. 886 (2017), the
guideline enhancements associated with Mr. ...