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United States v. Wing

United States District Court, D. Colorado

November 17, 2016

UNITED STATES OF AMERICA, Respondent,
v.
EDWARD NATHAN WING, Movant. Civil Action No. 16-cv-1219-WJM

          ORDER DENYING DEFENDANT'S 28 U.S.C. § 2255 MOTION TO VACATE SENTENCE

          WILLIAM J. MARTÍNEZ UNITED STATES DISTRICT JUDGE.

         Now before the Court is Defendant Edward Wing (“Wing”)'s 28 U.S.C. § 2255 Motion to Vacate Sentence. (ECF No. 52.) The Court ordered a Response from the Government (ECF No. 56) and Wing has filed a Reply (ECF No. 57). For the reasons explained below, this motion is denied.

         I. BACKGROUND

         Pursuant to a plea agreement, Defendant Wing pled guilty on November 21, 2006 to two criminal charges arising from the same conduct: (1) assaulting a federal law enforcement officer with a dangerous and deadly weapon, in violation of 18 U.S.C. § 111(a) & (b), and (2) discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). (ECF Nos. 40, 41.)

         The second conviction, under § 924(c)(1)(A)(iii), depends on the determination that the first conviction, under § 111, was a “crime of violence, ” as defined by 18 U.S.C. § 924(c)(3). Wing's conviction on this second count caused him to be sentenced pursuant to a ten year mandatory minimum, pursuant to 18 U.S.C. § 924(c)(1)(A)(iii).

         In the present Motion, Wing argues that following the Supreme Court's decision last year in Johnson v. United States, 135 S.Ct. 2551 (2015), his assault conviction can no longer constitutionally be considered a “crime of violence” under § 924(c)(3), and that he is therefore entitled to have his sentence vacated. Because the Court concludes that Wing's predicate conviction under § 111(b) is correctly considered a “crime of violence” notwithstanding Johnson, Wing's motion is denied.

         II. ANALYSIS

         A. Johnson and Welch

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015).[1] Johnson examined the provisions of the Armed Career Criminal Act (“ACCA”) that mandate a 15-year minimum sentence for anyone convicted of being a felon in possession of a firearm who “has three previous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1). Specifically at issue in Johnson was the ACCA's definition of “violent felony”:

any crime punishable by imprisonment for a term exceeding one year . . . if committed by an adult, that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another [.]

Id. § 924(e)(2)(B) (emphasis added). The italicized phrase in clause (ii) is commonly known as the “residual clause, ” while clause (i) is known as the “elements clause.”[2]

         Johnson held that the residual clause was unconstitutionally vague: “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.” 136 S.Ct. at 2557. On April 18, 2016, the Supreme Court decided in Welch v. United States, 136 S.Ct. 1257 (2016) that Johnson had announced a “substantive” change in the criminal law and therefore applies retroactively. Thus, via 28 U.S.C. § 2255, prisoners sentenced under the residual clause of the ACCA's “violent felony” definition can collaterally challenge their sentences as unconstitutional.

         Here, Wing seeks relief pursuant to Johnson and Welch, arguing that the holdings of those cases also apply to the separate definition of “crime of violence” under which Wing's sentence was increased.

         B. Whether Wing's Conviction Under 18 U.S.C. § 111 is a Crime of Violence

         The Court will first address whether Wing's conviction under 18 U.S.C. § 111 still constitutes a “crime of violence, ” assuming Wing is correct that Johnson and Welch allow him to seek relief given the separate provisions under which he was sentenced.

         1. Relevant “Crime of Violence” Sentencing Provision

         Wing was sentenced based on the conclusion that his conviction under 18 U.S.C. § 111 was a “crime of violence, ” under the following definition of that term:

(3) For purposes of this subsection the term “crime of violence” means an offense ...

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