Coplen v. United States

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, )

)

Plaintiff, )

)

vs. ) Case Number CR-98-153-C

) CIV-20-681-C

SCOTT ALEX COPLEN, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

Proceeding pursuant to a second 28 U.S.C. § 2255 Motion, Defendant seeks a

reduction in his sentence. According to Defendant, changes in the law subsequent to his

original sentence entitle him to a reduction. Defendant faced a five-count Indictment

arising from his actions on May 13, 1998. Those counts are as follows: Count 1,

attempting to carjack a woman at a motel, in violation of 18, U.S.C. § 2119; Count 2, using

a firearm during and in relation to the attempted carjacking of the woman at the motel, in

violation of 18 U.S.C. § 924(c)(1); Count 3, carjacking a school employee, in violation of

18, U.S.C. § 2119; Count 4, using a firearm during and in relation to the carjacking of the

school employee, in violation of 18, U.S.C. § 924(c)(1); and Count 5, being a felon in

possession of a firearm, in violation of 18, U.S.C. § 922(g)(1). Prior to trial, Plaintiff filed

an Information alleging prior crimes sufficient to enhance Defendant’s sentence for the

carjacking offenses to a mandatory life sentence if he was convicted. Plaintiff also

notified Defendant that if he were convicted of Count 5, it would seek an enhanced penalty

under 18 U.S.C. § 924(e)(1). After a one-day trial, Defendant was convicted on all

Counts. The Pre-Sentence Report (“PSR”) noted that Defendant’s prior criminal history

made him both an Armed Career Criminal and a Career Offender. At sentencing, the

Court found Defendant was an armed career criminal and a career offender and was subject

to the Three Strike provision. The Court then imposed life sentences for Counts 1 and 3

and a sentence of 180 months for the felon in possession charge to run concurrently. As

required by the statute in force at the time, the Court imposed a 5-year sentence for Count

2 and a 20-year sentence for Count 4 to run consecutively to all other sentences.

The procedural posture in which this matter arises is significant. Defendant first

filed a 28 U.S.C. § 2255 Motion on May 31, 2016, challenging application of the Armed

Career Criminal Act (“ACCA”) to his case in light of Johnson v. United States, 576 U.S.

591 (2015). The Court denied that request on August 11, 2016, finding the issue moot as

Defendant had completed his term of imprisonment under the ACCA. Defendant then

sought leave to file a second § 2255 Motion raising the present challenges. On July 14,

2020, the Tenth Circuit granted Defendant permission to pursue a second § 2255 Motion.

[A] successive § 2255 motion must pass through two gates before its merits

can be considered: (1) a prima facie showing to the court of appeals that the

motion satisfies the requirements of § 2255(h), defined as “a sufficient

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

court,” and (2) a determination by the district court that the petition does, in

fact, satisfy those requirements.

United States v. Murphy, 887 F.3d 1064, 1068 (10th Cir. 2018) (quoting Bennett v. United

States, 119 F.3d 468, 469 (7th Cir. 1997)). In granting permission to file the present

Motion, the Tenth Circuit determined Defendant had made a prima facie showing. The

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Court must now examine the Motion to determine if it does in fact meet the requirements

of § 2255(h). “To show that his motion satisfies section 2255(h), [Defendant] must show

that his motion contains newly discovered evidence or that it rests on a new rule of

constitutional law.” United States v. Harrison, 785 F. App’x 534, 536 (10th Cir. 2019),

cert. denied, --- U.S. ---, 141 S.Ct. 152 (2020).

Defendant raises two claims in support of his Motion. First, he argues that his 18

U.S.C. § 924(c) conviction must be set aside, as carjacking is a crime of violence only

under the residual clause and that clause is unconstitutionally vague under United States v.

Davis, --- U.S. ---, 139 S.Ct. 2319 (2019). Second, Defendant argues that the “serious

violent felony” charges used to impose his life sentence relied on 18 U.S.C. § 3559(c)’s

residual clause and that clause is also unconstitutional. Thus, to pass through the second

§ 2255(h) gate, Defendant must show these claims rely on the existence of a new rule of

constitutional law.

1. Section 924(c)

Defendant’s § 924(c) argument is premised on his position that his crimes violated

only the residual clause of that statute. As noted above, the Supreme Court held the

residual clause paragraph 3(B) of § 924(c) unconstitutional in Davis. Davis is a new rule

of constitutional law and so if Defendant is correct, he would pass through the second gate

of § 2255(h) and his Motion could proceed on that issue. However, as Plaintiff notes,

Defendant’s argument is factually flawed. In United States v. Kundo, 743 F. App’x 201,

203 (10th Cir. 2018), the Circuit stated: “We conclude that no reasonable jurist could

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debate whether armed carjacking is a crime of violence under § 924(c)(3)(A).” Thus,

Defendant’s sentence was not imposed pursuant to the residual clause and Davis has no

applicability here. Defendant has failed to pass through the second § 2255(h) gate and he

will not be permitted to pursue a § 2255 Motion on his § 924(c) claim.

2. Section 3559

Defendant argues that his sentence was enhanced pursuant to § 3559(c)’s residual

clause and because that clause is constitutionally infirm his sentence must be reduced.

According to Defendant, this enhancement could only be based on application of the

residual clause of § 3559(c)(2)(F)(ii). However, as Plaintiff notes, carjacking is an

enumerated offence in § 3559(c)(2)(F)(i). Thus, Defendant’s argument fails to

demonstrate the residual clause applies and thus cannot demonstrate a new rule of law as

required to pass through the second § 2255(h) gate.

Alternatively, Defendant challenges his § 3559(c) enhancement arguing that to the

extent it relied on the California robbery conviction it unconstitutionally applied the

residual clause. According to Defendant, recent Ninth Circuit case law clarifies that

robbery under that California statute is not categorically a crime of violence. However,

as Plaintiff notes, Defendant’s argument faces two obstacles and fails to overcome either.

First, the Supreme Court has not held the residual clause of § 3559(c) to be

unconstitutional. While that result may be the logical outcome given the other rulings on

residual clauses, the current posture of this case – the second gate of § 2255(h) – requires

Defendant to demonstrate that ruling has occurred. Defendant is in a position similar to

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that of the Defendant in United States v. Greer, 881 F.3d 1241 (10th Cir. 2018). The

defendant in Greer pursued a second § 2255 Motion to challenge his sentence under the

residual clause of § 4B1.2(a)(2) of the Guidelines. The Tenth Circuit rejected the request,

noting that Greer was asking the Circuit to determine that the reasoning of Johnson applied

to the Sentencing Guidelines. Id. at 1246-47. The Circuit held: “While circuit courts

can apply the reasoning of Johnson to support a finding that the residual clause of similarly

worded statutes are unconstitutionally vague on direct appeal, our review under AEDPA is

more limited. AEDPA limits federal habeas relief to new constitutional rights recognized

by the Supreme Court.” Id. at 1247. Finally, the Circuit noted that for purposes of §

2255, “[o]nly the Supreme Court can recognize a new constitutional right.” Id. The

Circuit then quoted from the Fourth Circuit:

[A] Supreme Court case has “recognized” an asserted right within the

meaning of § 2255(f)(3) if it has formally acknowledged that right in a

definite way. Cf. Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495,

146 L.Ed. 2d 389 (2000) (interpreting the phrase “clearly established Federal

law, as determined by the Supreme Court” within another provision of

AEDPA to mean “the holdings, as opposed to the dicta” of Supreme Court

precedent). Correspondingly, if the existence of a right remains an open

question as a matter of Supreme Court precedent, then the Supreme Court

has not “recognized” that right.

Id. (quoting United States v. Brown, 868 F.3d 297, 301 (4th Cir. 2017)). As noted above,

the Supreme Court has not yet held the residual clause of § 3559(c) to be unconstitutional.

Consequently, Defendant has not demonstrated his claim rests on a right recognized by the

Supreme Court and so he cannot pass through the second § 2255(h) gate.

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Second, Defendant has not demonstrated that he was in fact sentenced under the

residual clause of § 3559(c). As Plaintiff notes, the Presentence Report (“PSR”) shows

that Defendant’s sentence was enhanced under § 3559 because he had previously

committed two crimes of violence. The PSR noted that the California robbery was a crime

of violence because it had as an element the use or threatened use of physical force.

Additionally, at the time of sentencing, violation of the California robbery statute was

considered a crime of violence. See United States v. David H., 29 F.3d 489, 494 (9th Cir.

1994).* David H. provides a historical basis for the legal environment in which the Court

made its sentencing decisions. See United States v. Snyder, 871 F.3d 1122, 1129 (10th

Cir. 2017). That is, the case law existing at the time of sentencing provides a legal

background to understand the clause applied in sentencing Defendant. Here, given the

statement in the PSR and the legal environment of the nature of the California robbery

statute, it is clear that at sentencing the Court did not rely on the residual clause. See id.,

quoting United States v. Geozos, 870 F.3d 890, 895 (9th Cir. 2017) (overruled on other

grounds) (“‘For that reason, it may be possible to determine that a sentencing court did not

rely on the residual clause—even when the sentencing record alone is unclear—by looking

to the relevant background legal environment at the time of sentencing.’”). Thus, the

evidence before the Court supports that Defendant’s sentence was not based on the residual

* The Court notes that David H. has been overruled. See United States v. Garcia-Lopez,

903 F.3d 887 (9th Cir. 2018). However, it is relied on here to define the legal landscape of the

California robbery statute at the time Defendant was sentenced. For that purpose, it remains valid.

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clause and Defendant has not offered any evidence to the contrary. Accordingly,

Defendant cannot make the showing required under § 2255(h). See United States v.

Copeland, 921 F.3d 1233 (10th Cir. 2019).

For the reasons set forth herein, Defendant has failed to demonstrate that his 28

U.S.C. § 2255 Motion relies on a new rule of constitutional law. Thus, he has failed to

satisfy the requirements of 28 U.S.C. § 2255(h). Accordingly, Defendant’s Motion to

Vacate under 28 U.S.C. § 2255 (Dkt. No. 67) is DISMISSED without prejudice for lack of

jurisdiction.

IT IS SO ORDERED this 22nd day of March, 2021.

United States District Judge