Petition for Writ of Certiorari — James Branch, Petitioner v. United States

Case: 16-16957, 11/20/2017, ID: 10660626, DktEntry: 21-1, Page 1 of 2

NOT FOR PUBLICATION F | L E D

UNITED STATES COURT OF APPEALS NOV 20 2017

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 16-16957

Plaintiff-Appellee, D.C. Nos. 4:16-cv-01643-PJH

4:04-cr-40022-PJH

Vv.

JAMES BRANCH, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Phyllis J. Hamilton, Chief Judge, Presiding

Submitted November 15, 2017

Before: CANBY, TROTT, and GRABER, Circuit Judges.

Federal prisoner James Branch appeals from the district court’s denial of his

28 U.S.C. § 2255 motion to vacate. We have jurisdiction under 28 U.S.C. § 2253.

We review the district court’s denial of a section 2255 motion de novo, see United

States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014), and we affirm.

*

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

™ The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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Branch’s section 2255 motion argued that Johnson v. United States, 135 S.

Ct. 2551 (2015), rendered the residual clause in U.S.S.G. § 4B1.2(a)(2)

unconstitutionally vague, and therefore his prior California robbery conviction

could.no longer support his career offender sentence under U.S.S.G. § 4B1.1. This

argument is foreclosed by Beckles v. United States, 137 S. Ct. 886, 895 (2017).

The government’s concession in the district court that the residual clause in

§ 4B1.2(a)(2) was void does not bind this court. See United States v. Perez-Silvan,

861 F.3d 935, 938 n.2 (9th Cir. 2017) (courts “are not bound by a party’s

concession as to the meaning of the law” (internal quotations omitted)).

Branch contends, for the first time in his reply brief, that he is actually

innocent of being a career offender because his predicate California robbery

conviction no longer constitutes a crime of violence under the 2016 version of

U.S.S.G. § 4B1.2(a)(2). Even if this argument were properly before this court, see

Padgett v. Wright, 587 F.3d 983, 985-86 n.2 (9th Cir. 2009), it would be

foreclosed. See United States v. Chavez-Cuevas, 862 F.3d 729, 740 (9th Cir. 2017)

(reaffirming United States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008), which

held that California robbery categorically qualifies as a crime of violence).

AFFIRMED.

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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

UNITED STATES OF AMERICA,

Case No. 04-cr-40022-PJH-4

Plaintiff,

V. AMENDED ORDER DENYING MOTION

TO VACATE, SET ASIDE, OR

JAMES BRANCH, CORRECT SENTENCE; GRANTING

CERTIFICATE OF APPEALABILITY

Defendant.

Doc. no. 257

Before the court is the motion of James Branch (“movant” or “Branch”) for an order

under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Doc. no. 257. The

court issued an order to show cause, and the government filed an opposition to the

motion. Movant timely filed a reply. The matter is submitted on the papers and is

suitable for decision without oral argument. Having reviewed the available record and

carefully considered the parties’ papers and relevant authority, the court DENIES the

§ 2255 motion for the reasons set forth below.

BACKGROUND

The court notes that the original court file in this case was misplaced when it was

transmitted to the clerk’s office by the court of appeals upon remand. The paper file

maintained up through the appeal, which was noticed on September 12, 2005, remains

missing. To summarize the factual background and procedural history of this case, the

court relies on the electronic court docket; the presentence report (“PSR”) prepared by

the Probation Office, doc. no. 260; the transcript of the sentencing hearing (‘Tr.”), doc.

no. 198, which was originally filed in hard copy and then filed on the docket in electronic

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format by the court on August 30, 2016; the memorandum disposition entered by the

court of appeals, United States v. Branch, 197 Fed. Appx. 681 (9th Cir. 2006); and the

amended judgment entered on September 28, 2006, by the then-presiding judge.

Movant is currently serving a sentence imposed by former United States District

Judge Martin Jenkins. By indictment filed on February 5, 2004, movant was charged with

(1) armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d): and (2) possession of

a firearm during commission of a crime of violence in violation of 18 U.S.C. § 924(c)(1).

Movant entered an open plea to both counts.

At sentencing, the PSR found that movant had been convicted of at least two prior

felony convictions for a crime of violence that supported a finding that he was a career

offender within the meaning of U.S.S.G. § 4B1.1: (1) Second Degree Robbery conviction

in Alameda County Superior Court, Docket No. H20039, following an arrest on August 3,

1994, and (2) Inflict Corporal Injury on Spouse/Co-Habitant conviction in Alameda County

Superior Court, Docket No. 132112, following an arrest on December 15, 1997. PSR

Wf 35, 41, 42. Accordingly, the PSR calculated a guideline sentencing range of 262 to

327 months as to Count One, corresponding to a total offense level of 34, and a criminal

history category of VI. PSR 35. Without the career offender enhancement, the PSR

noted that as to Count One, the total offense level would be 19 and the criminal history

category would be IV, which would have resulted in a guideline range of 46-57 months.

As to Count Two, the PSR found that under § 2K2.4(b), the guideline sentence for a

violation of 18 U.S.C. § 924(c)(1) was five years imprisonment, consecutive to any other

term imposed, as required by statute. PSR § 38.

Addressing defense counsel's indication that the defense would seek a downward

departure due to the overstated seriousness of movant's criminal history and career

offender status, the PSR summarized the offense conduct underlying the prior

convictions:

However, it appears that the defendant is adequately

classified as a career offender based on the two violent

crimes of Second Degree Robbery and Inflict Corporal Injury

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on Spouse/Co-Habitant. During the robbery, the defendant

used a handgun, and in the second offense, he punched and

choked the victim, a former girlfriend, bit her on the arm and

back, grabbed her throat, dragged her across the floor while

Stating “I’m gonna kill you” and “I! want to kill you so bad | don’t

care what happens. | have nothing to lose,” while continuing

to choke her.

PSR Sentencing Recommendation at 2. In referring to the prior felony convictions, the

PSR did not refer to the definition of a “crime of violence” in the career offender guideline,

but stated that “[i]t appears that the defendani’s history of violence continues as he

possessed a handgun during the commission of the instant offense, which, if discharged,

could have potentially caused substantial harm and/or death if used on innocent bank

customers and/or tellers.” /d. Taking into consideration the factors set forth in 18 U.S.C.

§ 3553(a), including the nature and circumstances of the offense and the history and

characteristics of the defendant, the PSR recommended a below-guideline sentence of

140 months imprisonment as to Count One, plus five years consecutive as to Count Two.

The court sentenced movant to the recommended term of imprisonment, to be

followed by five years of supervised release as to each count to run concurrently, a

special assessment of $200, and $695 in restitution, joint and several with the codefendants. In analyzing the Chapter Four sentencing enhancements, the court found

that movant'’s criminal history included three convictions that established his career

offender status under § 4B1.1: (1) conviction in 1991 for possession of marijuana for sale:

(2) conviction in 1994 for second degree robbery; and (3) conviction in 1997 for infliction

of corporal injury to cohabitant or spouse. Tr. at 58. The PSR reported the 1991 drug

conviction in the criminal history section of the report, but did not refer to the controlled

substance offense in the discussion of Chapter Four enhancements, which referred only

to the convictions for robbery and inflicting corporal injury on spouse/cohabitant. PSR

M1 35, 40. The court determined that probation correctly computed the guideline range.

Tr. at 58.

Movant appealed from the judgment, arguing that the sentence was unreasonable

because the court did not sufficiently take into account his abusive childhood and that the

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sentence was unreasonable compared to the sentence that one of his co-defendants

received. Branch, 197 Fed. Appx. at 682-83. The Ninth Circuit affirmed the sentence,

holding that the court imposed a reasonable sentence, but remanded to correct an

erroneous statutory reference in the judgment. /d. at 683. On September 28, 2006, the

court entered an amended judgment upon remand. Doc. no. 206.

On March 31, 2016, movant filed the instant motion to vacate, set aside or correct

his sentence pursuant to 28 U.S.C. § 2255. The government filed a motion to stay the

proceedings, pending a ruling by the Supreme Court in Beckles v. United States, No. 15-

8544, which the court denied. The matter is fully briefed and submitted.

ISSUE PRESENTED

In his § 2255 motion, movant presents the following claim: that his rights to due

process, under the Fourth and Fifth Amendments, and his right against excessive

punishment, under the Eighth Amendment, were violated when he was sentenced to 200

months incarceration based on a finding that he had two prior felony convictions that

qualified as crimes of violence under the residual clause of U.S.S.G. § 4B1.2, which has

been rendered unconstitutionally vague by Johnson (Samuel) v. United States, 135 S. Ct.

2551 (2015).

LEGAL STANDARD

Under the federal habeas statute, relief may be granted to a federal prisoner

challenging the imposition or length of sentence on four grounds: (1) if the sentence

violated the Constitution or laws of the United States; (2) if the sentencing court was

without jurisdiction to impose sentence: (3) if the sentence exceeded the maximum

penalty allowed by law; or (4) if the sentence is otherwise subject to collateral attack. 28

U.S.C. § 2255. Despite this broad language, violations of federal law are only cognizable

if they involve a “fundamental defect” causing a “complete miscarriage of justice.” Davis

v. United States, 417 U.S. 333, 346 (1974).

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DISCUSSION

Movant claims that he was sentenced under the career offender guidelines after

the court found him to have two prior felony convictions that each qualified as a “crime of

violence” under the residual clause of § 4B1.2. A “crime of violence’ is defined at

§ 4B1.2 under the “force clause’ (or “elements clause”) in subsection (a)(1) and under the

“enumerated offenses clause” and the “residual clause” in subsection (a)(2):

(a) The term “crime of violence” means any offense under

federal or state law, punishable by imprisonment for a term

exceeding one year, that--

(1) has as an element the use, attempted use, or

threatened use of physical force against the person of

another, or

(2) is burglary of a dwelling, arson, or extortion,

involves use of explosives, or otherwise involves

conduct that presents a serious potential risk of

physical injury to another.

U.S.S.G. § 4B1.2. The residual clause of § 4B1.2(a)(2) is identical to the residual clause

of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B), defining a “violent

felony” to include any felony that “involves conduct that presents a serious potential risk

of physical injury to another.” In Johnson, the Supreme Court held that the residual

Clause of the ACCA violates the Constitution’s guarantee of due process against vague

criminal laws. 135 S. Ct. at 2563.

Here, the government does not dispute that Johnson applies to the residual clause

of U.S.S.G. § 4B1.2(a)(2) for cases on direct appeal, but argues that movant is not

entitled to collateral relief for three reasons: (1) the claim is procedurally defaulted;

(2) Johnson does not apply retroactively to the career offender guidelines; and (3) even if

Johnson applies retroactively on a collateral challenge to the residual clause of

§ 4B1.2(a)(2), each of movant’s prior convictions qualifies as a crime of violence without

relying on the residual clause of § 4B1.1(a)(1). Opp. (doc. no. 264) at 1.

As a threshold matter, movant contends that the government's failure to provide

the statute underlying the prior convictions that were determined to be crimes of violence

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under U.S.S.G. § 4B1.2 was an error that greatly hinders the analysis of his claim under

Johnson. Reply (doc. no. 265) at 11 (citing United States v. Pimentel-Flores, 339 F.3d

959, 967 (9th Cir. 2003) (holding that it was plain error for the district court to rely solely

on the factual description of the prior offense in the PSR to apply a sentencing

enhancement where the government failed to provide the statute of conviction or

judicially-noticeable evidence to establish the statute of conviction)). To give the

government an opportunity to cure this error, which movant apparently did not challenge

at the time of sentencing or on direct appeal, and to enable the court to proceed with an

analysis of the merits of movant’s § 2255 claim, the court ordered the government to file

judicially noticeable documents specifying the statute underlying each of movant’s prior

convictions, as identified in the PSR. Doc. no. 280 (citing United States v. Black, 482

F.3d 1035, 1041 (9th Cir. 2007)). See United States v. Matthews, 278 F.3d 880, 889 (9th

Cir. 2002) (“it makes little sense for us to direct the district court to determine whether the

State statutes of conviction meet Taylor's requirements, but not to allow the government

to establish which statutes the district court should consider’).

The government submitted a copy of the abstract of judgment in movant's 1998

conviction for inflicting corporal injury on a spouse or cohabitant, in violation of California

Penal Code § 273.5, Alameda County Superior Court, Docket No. 132112. Doc. no, 282.

The government represents that it has been unable to obtain from the California

Department of Corrections a copy of Branch’s 1994 judgment for second degree robbery,

which may not be stored in a digital archive and may be difficult to find. Decl. of J.

Douglas Wilson (doc. no. 282-1) J 4. The court takes judicial notice of the 1998 state

court abstract of judgment which clearly establishes that Branch was convicted under

Penal Code § 273.5.

The court further takes judicial notice that the abstract of judgment indicates that

Branch was “*** Sentenced pursuant to PC 1170.12(c)(1),” which provided that “[i]f a

defendant has one prior felony conviction that has been pled and proved, the determinate

term or minimum term for an indeterminate term shall be twice the term otherwise

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provided as punishment for the current felony conviction.” West’s Ann. Cal. Penal Code

§ 1170.12 (1998). The abstract of judgment is accompanied by a marked copy of the

February 17, 1998, information, with notations bearing the presiding judge’s stamp dated

April 16, 1998, which is the date of conviction recorded on the abstract of judgment. The

notations to the information indicate that the first two counts against Branch were

dismissed, that the great bodily injury clauses were stricken, and that Branch pled to the

third count for violating section 273.5 of the Penal Code and admitted to a prior felony

conviction in Alameda County Superior Court on or about September 29, 1994, for

“ROBBERY, a violation of section 211 of the Penal Code of California.” Doc. no. 282-1.

The court takes judicial notice of this state court record identifying the statute underlying

the 1994 robbery conviction as Penal Code § 211, which corresponds to the prior

conviction reported in the PSR {41 for second degree robbery on September 28, 1994.

Although the government did not provide a copy of the judgment on movant’s prior

robbery conviction, the state court record of his 1998 conviction and sentence for

inflicting corporal injury on a spouse/cohabitant includes his admission to the 1994

robbery conviction, which “can be accurately and readily determined from sources whose

accuracy Cannot reasonably be questioned” pursuant to FRE 201(b), and provides “other

documentary evidence that clearly establishes the statutes under which [Branch] was

convicted.” Matthews, 278 F.3d at 885. See United States v. Black, 482 F.3d 1035,

1041 (9th Cir. 2006) (taking judicial notice of judgment of conviction entered in state court

where “those proceedings have a direct relation to matters at issue,” after the

government conceded that it failed to provide the sentencing judge with the statute

underlying a prior controlled substance offense).

Having taken judicial notice of the state court records submitted by the

government, the court finds that the statutes underlying movant’s prior convictions have

been identified for purposes of reviewing the career offender sentencing enhancement.

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I. PROCEDURAL DEFAULT

The government contends that movant is barred from raising the Johnson claim on

a collateral challenge to the judgment because he failed to raise the claim on direct

review and has not demonstrated cause and prejudice to excuse the procedural default.

“Where a defendant has procedurally defaulted a claim by failing to raise it on direct

review, the claim may be raised in habeas only if the defendant can first demonstrate

either cause and actual prejudice, or that he is actually innocent.” United States v.

Ratigan, 351 F.3d 957, 964 (9th Cir. 2003) (quoting Bousley v. United States, 523 U.S.

614, 622 (1998) (internal citations and marks omitted)). There is no dispute that movant

did not challenge the career offender guideline provision as unconstitutionally void on

direct appeal. Movant does not address the grounds to excuse his failure to raise the

challenge on direct appeal, but argues generally that Johnson should be applied

retroactively. Reply (doc. no. 265) at 4. As movant does not assert actual innocence to

excuse the procedural default, the court proceeds to consider whether the record

demonstrates cause and prejudice.

A. Cause

“To allege cause for a procedural default, a petitioner must assert that the

procedural default is due to an ‘objective factor’ that is ‘external’ to the petitioner and that

‘cannot fairly be attributed to him.” Manning v. Foster, 224 F.3d 1129, 1133 (9th Cir.

2000) (citing Coleman v. Thompson, 501 U.S. 722, 753 (1991)). Under this standard, “a

showing that the factual or legal basis for a claim was not reasonably available to

counsel’ establishes cause for a procedural default. Murray v. Carrier, 477 U.S. 478, 488

(1986). The government argues that the vagueness claim was “reasonably available’ to

movant when he pleaded guilty and at the time of his direct appeal, because he had

grounds to argue that the residual clause of the career offender provision was vague.

Opp. at 5-6. While the Supreme Court has held that “futility cannot constitute cause if it

means simply that a claim was unacceptable to that particular court at that particular

time,” Bousley, 523 U.S. at 623, the legal basis for a vagueness challenge to the career

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offender guideline was “not reasonably available to counsel” in light of the Supreme

Court's holdings in James v. United States, 550 U.S. 192 (2007) and Sykes v. United

States, 131 S. Ct. 2267 (2011), both of which were expressly overruled by Johnson. As

Justice Scalia noted in his discussion of the Court’s prior rulings on the ACCA, “[iJn both

James and Sykes, the Court rejected suggestions by dissenting Justices that the residual

clause violates the Constitution’s prohibition of vague criminal laws.” Johnson, 135 S. Ct.

at 2556. In light of this authority, the court finds cause for movant's failure to raise the

vagueness challenge on direct appeal.

B. Prejudice

To establish the prejudice prong to excuse the failure to raise a claim on direct

appeal, a defendant must show not merely “a possibility of prejudice,” but that the alleged

error “worked to his actua/ and substantial disadvantage.” United States v. Braswell,

501 F.3d 1147, 1150 (9th Cir. 2007) (quoting United States v. Frady, 456 U.S. 152, 170

(1982)). To satisfy the cause and prejudice test to excuse procedural default, a

defendant must demonstrate prejudice “significantly greater than that necessary under

the more vague inquiry suggested by the words ‘plain error.” Murray, 477 U.S. at 493-

94. The plain error test of Federal Rule of Criminal Procedure 52(b) applies on direct

review of an error not raised in the district court. United States v. Cotton, 535 U.S. 625,

631 (2002). Under Ninth Circuit authority, miscalculation of the guideline sentencing

range, potentially resulting in the imposition of a greater sentence, constitutes plain error

that affects a defendant's substantial rights and the fairness of the judicial proceedings.

See United States v. Bonilla-Guizar, 729 F.3d 1179, 1188 (9th Cir. 2013) (citing United

States v. Castillo-Marin, 684 F.3d 914, 927 (9th Cir. 2012)) (internal marks omitted).

As noted by the government, without the career offender enhancement, movant's

offense level would have been 19, with criminal history category IV, resulting in a

guideline sentencing range of 46 to 57 months. Opp. at 2. The government contends

that movant has not demonstrated actual prejudice, which requires a higher showing than

his prima facie assertion of plain error in the guideline calculation. Opp. at 6. However,

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movant asserts not merely plain error in the guideline calculation, which resulted in a

Significant discrepancy between the career offender guideline range, 262 to 327 months,

and the guideline range without the career offender enhancement, 46 to 57 months, but

also that the error worked to his “actual and substantial disadvantage,” as demonstrated

by the discrepancy of 83 to 94 months between the guideline range without the career

offender enhancement and the actual sentence of 140 months imposed by the court as to

Count One, which reflected a downward departure. Mot. (doc. no. 258) at 15. The court

finds that this is sufficient to show prejudice.

Having found cause and prejudice to excuse movant’s failure to raise the

vagueness challenge to the sentence on direct appeal, the court proceeds to consider

whether the holding of Johnson applies retroactively to a collateral challenge to the

career offender provision of the guidelines.

ll. RETROACTIVITY

Movant asserts that Johnson should be applied retroactively to collateral

challenges to the residual clause of the Guidelines. The government contends that the

holding of Johnson does not apply retroactively on collateral review under the plurality

opinion in Teague v. Lane, 489 U.S. 288 (1989), which recognized two exceptions to the

general principle that new rules do not apply to cases which became final before the new

rules were announced. The first exception to the nonretroactivity principle under Teague

and its progeny is for “[nJew substantive rules,” including “decisions that narrow the scope

of a criminal statute by interpreting its terms,” and rules “that place particular conduct or

persons covered by the statute beyond the State’s power to punish.” Schriro v.

Summerlin, 542 U.S. 348, 351-52 (2004) (citations and internal marks omitted). “Such

rules apply retroactively because they necessarily carry a significant risk that a defendant

Stands convicted of an act that the law does not make criminal or faces a punishment that

the law cannot impose upon him.” /d. at 352 (citations and internal marks omitted). The

second, more limited exception under the Teague doctrine is for “‘watershed rules of

criminal procedure’ implicating the fundamental fairness and accuracy of the criminal

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proceeding.” Saffle v. Parks, 494 U.S. 484, 495 (1990). See Beard v. Banks, 542 U.S.

406, 417 (2004) (noting that the Supreme Court has “yet to find a new rule that falls

under the second Teague exception’) (internal citations and marks omitted).

The court notes that this threshold issue of retroactivity is pending before the

Supreme Court in Beckles, where the Court granted certiorari review on the questions

whether Johnson applies retroactively to collateral cases challenging federal sentences

enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2), and whether Johnson's

constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby

rendering challenges to sentences enhanced under it cognizable on collateral review.

The court declined to stay these proceedings during the pendency of Beckles after

determining that a stay in reaching the merits of movant’s Johnson claim could result in

prejudicial delay, where movant seeks a reduced term of imprisonment that may be

exceeded by time served. Doc. no. 274. Because the government asserts that Teague

bars retroactive application of Johnson to movant's claim, “the court must apply Teague

before considering the merits of the claim.” Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

In Welch v. United States, 136 S. Ct. 1257, 1264-65 (2016), the Supreme Court

held that Johnson announced a new substantive rule that has retroactive effect on

collateral review of a sentence based on a finding that a prior robbery conviction qualified

as a violent felony conviction under the residual clause of the ACCA, which was held

invalid in Johnson. In holding that Johnson announced a substantive, rather than

procedural rule, the Court in Welch reasoned, “By striking down the residual clause as

void for vagueness, Johnson changed the substantive reach of the Armed Career

Criminal Act, altering ‘the range of conduct or the class of persons that the [Act]

punishes.” /d. at 1265 (quoting Schriro, 542 U.S. at 353). The Court distinguished

substantive from procedural rules, “considering the function of the rule, not its underlying

constitutional source.” /d.

“A rule is substantive rather than procedural if it alters the

range of conduct or the class of persons that the law

punishes.” Schriro, 542 U.S. at 353. “This includes decisions

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that narrow the scope of a criminal statute by interpreting its

terms, as well as constitutional determinations that place

particular conduct or persons covered by the statute beyond

the State's power to punish.” /d, at 351-352 (citation omitted)

see [Montgomery v. Louisiana, 136 S. Ct. 718, 728 (2016).

Procedural rules, by contrast, “regulate only the manner of

determining the defendant's culpability.” Schriro, 542 U.S. at

353. Such rules alter “the range of permissible methods for

determining whether a defendant's conduct is punishable.”

Ibid. “They do not produce a class of persons convicted of

conduct the law does not make criminal, but merely raise the

possibility that someone convicted with use of the invalidated

procedure might have been acquitted otherwise.” /d. at 352.

136 S. Ct. at 1264-65.

)

The government distinguishes Welch by arguing that Johnson, as applied to the

Sentencing Guidelines, is a procedural rule, rather than a substantive rule found in Welch

when applied to the ACCA. The government contends that a “rule invalidating the crimeof-violence residual clause would establish that the defendant’s Guidelines range was

incorrectly calculated, but it would not disturb the statutory boundaries for sentencing set

by Congress for the crime.” Opp. at 9. The Ninth Circuit has not reached the issue

whether Johnson is procedural, for purposes of a Teague retroactivity analysis, when

applied to the residual clause of the career offender guideline, § 4B1.2(a)(2). See United

States v. Lee, 821 F.3d 1124, 1127 (9th Cir. 2016) (declining, on direct review, to reach

the constitutional question whether Johnson applied to the Sentencing Guidelines and

rendered the residual clause of § 4B1.2(a)(2) unconstitutionally void because “neither of

Lee’s convictions would qualify as a ‘crime of violence’ under our pre-Johnson caselaw’).

Since Welch was decided, other circuits have squarely addressed, and rejected,

the government's argument that Johnson announced a non-retroactive procedural rule as

applied to the career offender provisions of the Sentencing Guidelines. Following Welch,

the Fourth Circuit held that Johnson is retroactive as applied to the career offender

guidelines, which, at the time of sentencing, defined the term “crime of violence” by

reference to 18 U.S.C. § 16 (1988). /n re Hubbard, 825 F.3d 225, 230 (4th Cir. 2016).

The Fourth Circuit reasoned that “Welch declared unequivocally that Johnson was ‘a

substantive decision and so has retroactive effect under Teague in cases on collateral

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review,’ and that if Johnson invalidates § 16(b), “some crimes will no longer fit the

Sentencing Guidelines’ definition of a crime of violence and will therefore be incapable of

resulting in a career-offender sentencing enhancement.” /d. at 234 (quoting Welch, 136

S. Ct. at 1265). “That is, the ‘substantive reach’ of the Sentencing Guidelines would be

altered just as much as was true for the ACCA.” /d. The court of appeals rejected the

government's argument that errors in calculating the appropriate guidelines range are

procedural, in light of Supreme Court authority describing the Sentencing Guidelines as

‘the substantive formula used to calculate the applicable sentencing range.” /d. at 235

(citing Peugh v. United States, 133 S. Ct. 2072, 2088 (2013) (internal citation and marks

omitted) and Molina-Martinez v. United States, 136 S. Ct. 1338, 1345 (2016) (“The

Guidelines’ central role in sentencing means that an error related to the Guidelines can

be particularly serious.”)).

In support of its argument that Johnson announced a procedural rule, the

government cites United States v. Cruz, 423 F.3d 1119 (9th Cir. 2005) (per curiam),

where the court of appeals held that Booker announced a non-retroactive procedural rule,

reasoning that “the Booker rule fits squarely within the [Ninth Circuit's] holding that a

‘change in the law requiring that juries, rather than judges, make the factual findings on

which a sentence is based [does] not announce a watershed rule of criminal procedure.”

Id. at 1120-21 (quoting Schardt v. Payne, 414 F.3d 1025, 1036 (9th Cir. 2005) (citing

Schriro, 124 S. Ct. at 2524-26)). Opp. at 9. In Hubbard, however, the Fourth Circuit

distinguished procedural rules, such as Booker, in finding that Johnson is not a

procedural decision as applied to the Sentencing Guidelines, where invalidation of the

residual clause of the career offender guidelines “would have ‘nothing to do with the

range of permissible methods a court might use to determine whether a defendant should

be sentenced’ as a career offender,” and Johnson's application to the guidelines would

not, “for example, allocate decisionmaking authority between judge and jury, or regulate

the evidence that the court could consider in making its decision.” 825 F.3d at 235

(quoting Welch, 136 S. Ct. at 1265).

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Similarly, the Sixth Circuit held that Johnson announced a substantive rule as

applied to the Sentencing Guidelines, which “substantively changes the conduct by which

federal courts may enhance the sentence of a defendant,” to grant a petitioner's motion

to authorize a second or successive § 2255 motion challenging his sentence under the

career offender guidelines. /n re Patrick, 833 F.3d 584, 2016 WL 4254929 at *2 (6th Cir.

Aug. 12, 2016) (noting that “[mJany other circuit panels, from the Second, Fifth, Seventh,

Eighth, Ninth, Tenth, and D.C. Circuits, have authorized a second or successive petition,

finding a prima facie showing that Johnson applies retroactively to the Guidelines.”)

(citing In re McCall, 826 F.3d 1308, 1310 n.2 (11th Cir. 2016) (Martin, J., concurring)

(compiling cases)).

Finding the reasoning of the circuit courts in Hubbard and Patrick to be highly

persuasive, the court holds that Johnson is a substantive rule as applied to the career

offender provision of the Sentencing Guidelines, on the ground that extending Johnson to

invalidate the residual clause of § 4B1.2(a)(2) “alters . . . the range of conduct or class of

persons that the law punishes.” Welch, 136 S. Ct. at 1266 (citations omitted). Thus,

under the Teague doctrine, Johnson applies retroactively to movant’s collateral challenge

to his sentence.

HI. CRIMES OF VIOLENCE

The government argues that even if the residual clause of § 4B1.2 is held void for

vagueness under Johnson, movant’s prior convictions for second degree robbery and for

inflicting corporal injury on a spouse or cohabitant do not fall under the residual clause

and constitute crimes of violence for purposes of career offender status.

A. Second Degree Robbery

Movant challenges the government's failure to identify the statute underlying his

prior conviction for second degree robbery. Having taken judicial notice of the state court

record, doc. no. 282-1, indicating that movant admitted to suffering a felony robbery

conviction in violation of Penal Code § 211 on or about September 29, 1994, which was

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reported without the statutory reference in the PSR { 41, the court finds that movant

suffered a prior conviction for second degree robbery in violation of Penal Code § 211.

Movant next argues that “even assuming the conviction is for Cal. Penal Code

§ 211, Robbery,” the prior robbery conviction does not qualify as a crime of violence, as

defined in § 4B1.2, under the holding of Johnson. The government responds that

robbery is a crime of violence within the meaning of the career offender guidelines

without relying on the residual clause, citing Application Note 1 to § 4B1.2. Opp. at 13. '

At the time of movant’s sentencing, paragraph 2 of Application Note 1 stated as follows:

“Crime of violence” includes murder, manslaughter,

kidnapping, aggravated assault, forcible sex offenses,

robbery, arson, extortion, extortionate extension of credit,

and burglary of a dwelling. Other offenses are included as

“crimes of violence” if (A) that offense has as an element the

use, attempted use, or threatened use of physical force

against the person of another, or (B) the conduct set forth

(i.e., expressly charged) in the count of which the defendant

was convicted involved use of explosives (including any

explosive material or destructive device) or, by its nature,

presented a serious potential risk of physical injury to another.

18 U.S.C.S. Appx. § 4B1.2 cmt. n.1 (2005) (emphasis added). The government cites

authority that commentary in the Sentencing Guidelines Manual that interprets or

explains a guideline is binding, “unless it violates the Constitution or a federal statute, or

is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United

States, 508 U.S. 36, 38 (1993). Neither party cites controlling authority on the question

whether the specific offenses listed in Application Note 1 to § 4B1.2 should be interpreted

as expanding upon § 4B1.2’s enumerated offenses clause, or as explaining the residual

clause which has been invalidated by Johnson.

' The court notes that elsewhere in its brief, the government stated the proposition

that both prior convictions for robbery and domestic violence are crimes of violence under

the force clause of the career offender definition, but the government proceeds on the

argument that a robbery conviction under Cal. Penal Code § 211 falls under the

enumerated offenses in Application Note 1 and does not articulate any argument that

robbery under California law qualifies as a crime of violence under the force clause of

§ 4B1.2. See Opp. at 3, 13.

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1. Penal Code § 211 Constitutes Generic Robbery or Generic

Extortion Under Ninth Circuit Authority

In Becerril-Lopez, decided before Johnson, the Ninth Circuit reviewed the list of

enumerated offenses in the commentary to § 2L1.2, applicable to unlawful reentry

offenses, and held that a robbery conviction under Cal. Penal Code § 211 “could only

result from conduct that constitutes a ‘crime of violence’ for purposes of U.S.S.G.

§ 21.2.” United States v. Becerril-Lopez, 541 F.3d 881, 891-93 (9th Cir. 2008). The

commentary to § 2L1.2 defined a crime of violence to mean any of the following:

murder, manslaughter, kidnapping, aggravated assault,

forcible sex offenses, statutory rape, sexual abuse of a minor,

robbery, arson, extortion, extortionate extension of credit,

burglary of a dwelling, or any offense under federal, state, or

local law that has as an element the use, attempted use, or

threatened use of physical force against the person of

another.

Id. at 890 (citing U.S.S.G. § 2L1.2 cmt.) (emphasis added).

Applying the categorical approach under Taylor v. United States, 495 U.S. 575

(1990), the court in Becerril-Lopez held that California’s definition of robbery

encompassed mere threats to property and was therefore broader than generic robbery,

one of the crimes listed in § 2L1.2, which was defined as “aggravated larceny, containing

at least the elements of misappropriation of property under circumstances involving

immediate danger to the person.” 541 F.3d at 891. The court determined, however, that

‘[t]akings through threats to property and other threats of unlawful injury fall within

generic extortion,” defined as “obtaining something of value from another with his consent

induced by the wrongful use of force, fear, or threats,” which was also defined as a “crime

of violence” in the commentary to § 2L1.2. Id. at 891-92 (citing Scheidler v. Nat'l Org. for

Women, Inc., 537 U.S. 393, 409 (2003) (internal quotation marks omitted); U.S.S.G.

§ 2L1.2 cmt. 1(B)(iii)). Thus, the court concluded that “if a conviction under Cal. Penal

Code § 211 involved a threat not encompassed by generic robbery, it would necessarily

constitute generic extortion and therefore be a ‘crime of violence’ under U.S.S.G.

§ 2L1.2.” Id. at 892. Accord United States v. Castillo, 811 F.3d 342, 348 (10th Cir. 2015)

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(“Our determination that a conviction under [Cal. Penal Code] section 211 in either of its

forms constitutes a crime of violence requires nothing more than the unremarkable

observation that section 211 prohibits conduct that would in other jurisdictions be

considered one of two different—but closely related—crimes that are each crimes of

violence within the meaning of § 2L1.2.”) (citing Becerril-Lopez).

In United States v. Dixon, 805 F.3d 1193, 1194 (9th Cir. 2015), the court

distinguished Becerril-Lopez, without questioning its validity in the wake of Johnson, to

hold that a violation of Cal. Penal Code § 211 does not meet the ACCA’s definition of

“violent felony,” as set forth in 18 U.S.C. § 924(e)(1), which does not include robbery

among the enumerated offenses. “We previously determined that CPC § 211 is

categorically a ‘crime of violence’ under U.S.S.G. § 2L1.2 because, in all its applications,

CPC § 211 always constitutes either generic robbery or generic extortion, both of which

are included in U.S.S.G. § 2L1.2’s definition of “crime of violence.” /d. at 1196 (citing

United States v. Flores—Mejia, 687 F.3d 1213, 121516 (9th Cir. 2012); Becerril-Lopez,

541 F.3d at 892-93). “Unlike U.S.S.G. § 2L1.2, however, the ACCA’s definition of

“violent felony” includes only generic extortion; it omits generic robbery.” /d. (citing 18

U.S.C. § 924(e)(2)(B)(ii)). “Thus, although they are useful precedents, Flores-Mejia and

Becerril-Lopez do not control the outcome of this case.” /d. As articulated by the court in

Dixon, its holding, that a violation of Cal. Penal Code § 211 is not a “violent felony” under

the ACCA, does not call into question the holding of Becerril-Lopez recognizing robbery

under California law as a categorical crime of violence under the “enumerated offenses”

definition in the Sentencing Guidelines. See Flores-Mejia, 687 F.3d at 1216 (“since the

‘enumerated offenses’ definition does not require us to apply the element test, the

underlying conviction need not be for an offense that involves the intentional use of

force”) (internal citations and marks omitted).

In several unpublished decisions, the Ninth Circuit has continued to recognize

Becerril-Lopez as controlling law on the issue whether the California robbery statute is a

categorical crime of violence as defined under the Sentencing Guidelines. See United

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States v. Tate, No. 15-10283, 2016 WL 4191909 at *1 (9th Cir. Aug. 9, 2016) (“Becerril-

Lopez controls here: Tate, who committed robbery under § 211, necessarily committed

either generic robbery or generic extortion, which are both listed as crimes of violence in

§§ 4B1.2(a)(2) and 4B1.2’s Application Note 1.”), pet. for reh’g denied Sept. 16, 2016:

United States v. Manzo-Solano, 2016 WL 1554120 at *1 (9th Cir. April 18, 2016) (holding

that Becerril-Lopez foreclosed the defendant's argument on direct appeal “that the district

court erred in applying a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(ii)

because his prior conviction for second degree robbery under California Penal Code

§§ 211 and 212.5(c) is not a crime of violence.”); United States v. Mazariego-Gomez,

2016 WL 1554135 at *1 (9th Cir. April 18, 2016) (appellant’s argument that his prior

conviction under California Penal Code § 211 was not a crime of violence under § 2L1.2

is “foreclosed”) (citing Becerril-Lopez, 541 F.3d at 893 & n.10), cert. denied, No. 15-9828

(Oct. 3, 2016).

2. Expanded List of Enumerated Offenses in Application Note 1 to

§ 4B1.2 Includes Robbery

The court in Becerril-Lopez held that robbery was a categorical crime of violence

as defined in the commentary to § 2L1.2 which does not contain a residual clause, unlike

the definition of “crime of violence” set forth in the text of § 4B1.2. The offense of

extortion appears in both the enumerated offenses clause of § 4B1.2 and in the list of

offenses specified in Application Note 1 to § 4B1.2, but the offense of robbery appears

only in Application Note 1. In light of Becerril-Lopez’s continued validity, the central

dispute presented here is whether the offenses enumerated in Application Note 1

expands on the enumerated offenses clause of § 4B1.2, or whether the offenses

specified in Application Note 1 describe crimes of violence under the residual clause

which has been rendered invalid by Johnson. There is out-of-circuit authority to support

both views, but the Ninth Circuit has not reached this question. Since Johnson was

decided, the Ninth Circuit has not issued an opinion distinguishing the enumerated

offenses listed in the commentary to § 2L1.2, which was at issue in Becerril-Lopez, from

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the enumerated offenses listed in Application Note 1 to § 4B1.2. Nor is there published

Ninth Circuit authority on whether robbery and the other enumerated offenses in

Application Note 1 to § 4B1.2 categorically qualify as crimes of violence.”

The Ninth Circuit's unpublished decision in Tate is consistent with the view that the

more extensive list of enumerated offenses in Application Note 1 is read together with the

enumerated offenses clause of the text of § 4B1.2, rather than the residual clause. In

Tate, 2016 WL 4191909 at *1, the Ninth Circuit rejected the defendant’s argument on

appeal that his previous second degree robbery conviction under California Penal Code

§ 211 did not qualify as a crime of violence under U.S.S.G. § 2K2.1, which applies an

enhanced base offense level for a felon in possession of a firearm subsequent to a

conviction for a “crime of violence,” as defined “in § 4B1.2(a) and Application Note 1 of

the Commentary to § 4B1.2.” See U.S.S.G. § 2K2.1 cmt. n.1. The court in Tate noted

that “Application Note 1 of § 4B1.2 states that robbery and extortion are both crimes of

violence.” 2016 WL 4191909 at *1 (citing U.S.S.G. § 4B1.2 cmt. n.1 and § 4B1.2(a)(2)).

Citing Becerril-Lopez as controlling circuit authority left “undisturbed by Johnson,” the

court in Tate held that robbery under § 211 is categorically a “crime of violence” because

a defendant who commits robbery under § 211 necessarily commits either generic

extortion or generic robbery. 2016 WL 4191909 at *1 (citing Becerri-Lopez, 541 F.3d at

891-93; U.S.S.G. § 4B1.2 cmt. n.1.).

Outside the Ninth Circuit, other circuits have taken opposing views interpreting the

offenses specified in the commentary to 4B1.2. In United States v. Soto-Rivera, 811 F.3d

2 This issue is currently pending before the Ninth Circuit in two cases on direct

appeal challenging sentences based on findings that prior robbery convictions qualified

as crimes of violence: United States v. Andrews, No. 15-10030 (notice of appeal filed

Jan. 26, 2015) (raising supplemental argument after Johnson that the commentary to

section 4B1.2, which provides that the term “crime of violence” includes robbery, lacks

freestanding definitional power to override the text of the guideline, which is limited to the

“elements” and “enumerated” clauses under Johnson), submission deferred July 28,

2016; United States v. Biddles, No. 15-50463 (notice of appeal filed Oct. 29, 2015)

(presenting the question whether California Penal Code 211 is a categorical crime of

violence based on a provision that appears in the commentary to U.S.S.G. § 4B1.2, but

not in the text of the guideline), held in abeyance Oct. 6, 2016.

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53, 60 (1st Cir. 2016), the First Circuit held that, in the wake of Johnson, a prior

conviction for being a felon in possession of a firearm, as described in Application Note 1,

{| 3 to § 4B1.2, does not qualify as a “crime of violence’ if § 4B1.2 is stripped of the

residual clause because there is “no mechanism or textual hook in the Guideline’ to

import the offenses described in Application Note 1 into the definition of a crime of

violence. Accordingly, the First Circuit held that the commentary at issue, stating that

“crime of violence’ does not include the offense of unlawful possession of a firearm by a

felon, unless the possession of a firearm was of a firearm described in 26 U.S.C.

§ 5845(a),” does not offer an independent basis for finding a predicate crime of violence.

Id. at 59-60. “[I]n the absence of the residual clause, there is no textual hook in

Guidelines § 4B1.2(a) to allow for the conclusion that his possession of a firearm

constituted a crime of violence.” /d. at 61. In other words, the court in Soto-Rivera

determined that the defendant’s prior conviction for possession of a machinegun, as

described in 26 U.S.C. § 5845(a), could not qualify as a “crime of violence” under

Application Note 1 without referring back to the residual clause of § 4B1.2, which the

government conceded was rendered invalid by Johnson. Id.

The defendant in Tate cited Soto-Rivera as supplemental authority in support of

his argument that the commentary to § 4B1.2 has no free-standing authority and that

because the offenses enumerated in the commentary explain the residual clause, the

offenses listed in the commentary are invalidated with the residual clause under Johnson.

Tate, No. 15-10283, doc. no. 32 (9th Cir. June 8, 2016). Although the court in Tate did

not expressly address this argument or distinguish Soto-Rivera, the court relied on the

expanded list of enumerated offenses contained in Application Note 1 and implicitly

rejected the view that Johnson rendered the commentary to § 4B1.2 invalid or

inconsistent with the text of the guideline itself. Tafe, 2016 WL 4191909 at *1.

In contrast to the reasoning of Soto-Rivera, several other circuits expressly

recognize that “[t]he commentary to § 4B1.2, more specifically Application Note 1 thereof,

expands upon the roster of enumerated offenses by specifying additional ones, such as

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manslaughter and kidnapping, that also constitute crimes of violence.” United States v.

Mobley, 687 F.3d 625, 628-29 (4th Cir. 2012) (citing U.S.S.G. § 4B1.2, cmt. n. 1). See

also United States v. Marrero, 743 F.3d 389, 398-99 (3d Cir. 2014) (“offenses listed in

what is now Application Note 1 to § 4B1.2 should be considered ‘enumerated’ offenses

for purposes of the crime-of-violence analysis’) (citing decisions of other circuits), cert.

denied, 135 S. Ct. 950 (2015) and abrogated on other grounds by Johnson. Recently,

the Fifth Circuit rejected a Johnson challenge to a career offender sentencing

enhancement, holding that “Application Note 1 to § 4B1.2 specifically enumerates

aggravated assault as a ‘crime of violence.” United States v. Jeffries, 822 F.3d 192, 193

(Sth Cir.) (per curiam), pet. for reh’g denied, 829 F.3d 769 (5th Cir. 2016).

The court finds the weight of this circuit authority, treating the offenses listed in

paragraph 2 of Application Note 1 as enumerated offenses, to be more persuasive and

more relevant to the question presented in this case than the First Circuit’s limited holding

in Soto-Rivera. There, the First Circuit issued a “narrow” ruling that “Soto-Rivera’s

particular crime of conviction does not qualify as a ‘crime of violence’ under the

Guidelines.” 811 F.3d at 54. The court in Soto-Rivera was not presented with the

question whether the list of enumerated offenses specified in Application Note 1] 2,

including generic robbery and extortion, refers back to the residual clause of § 4B1.2 or

expands on the enumerated offenses clause. The reasoning of Soto-Rivera, that the

absence of the residual clause leaves “nothing within § 4B1.2(a)'s text to serve as an

anchor for Application Note 1’s inclusion of possession of a machinegun” in paragraph 3,

does not apply squarely to the list of offenses specified in paragraph 2 of Application

Note 1, which includes three of the offenses that are identified in the enumerated

offenses clause of § 4B1.2: arson, extortion and burglary of a dwelling. The presence of

those three enumerated offenses in both the text of § 4B1.2 and its commentary provide

the “textual hook” that was lacking in Soto-Rivera, which did not concern the enumerated

offenses listed in Application Note 1] 2.

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In light of recent Ninth Circuit authority, both published and unpublished,

recognizing the continued validity of the holding of Becerril-Lopez that robbery under

California Penal Code § 211 is a categorical crime of violence as defined in the

commentaries to the Sentencing Guidelines, the court determines that movant’s prior

conviction for second degree robbery qualifies as a crime of violence under § 4B1.2 and

Application Note 1 to § 4B1.2.

B. Domestic Violence

Movant contends that the prior conviction for inflicting corporal injury on a spouse

or cohabitant no longer qualifies as a crime of violence in light of Johnson. Mot. at 14.

Movant also challenges the career offender enhancement on the ground that the PSR

failed to specify the Penal Code section underlying his domestic violence conviction.

Reply at 10. As with his challenge to the government's failure to identify the statute

underlying his prior robbery conviction, movant failed to raise this particular objection to

the career offender enhancement at the time of sentencing. The court has taken judicial

notice of the state court abstract of judgment which clearly establishes that movant

suffered a felony conviction in Alameda County Superior Court for inflicting corporal injury

on a spouse or cohabitant in violation of Penal Code § 273.5. Doc. no. 282-1; PSR ¥ 42.

Ninth Circuit authority recognizes that a conviction for willful infliction of corporal

injury under California Penal Code § 273.5(a) is categorically a crime of violence as

defined by the force clauses of 18 U.S.C. § 16(a) and U.S.S.G. § 2L1.2, which are similar

to the force clause at issue under U.S.S.G. § 4B1.2. Banuelos-Ayon v. Holder, 611 F.3d

1080, 1083-84 (9th Cir. 2010). See also United States v. Ayala-Nicanor, 659 F.3d 744,

752 (9th Cir. 2011) (holding that § 273.5 is a categorical crime of violence under the force

clause of the illegal reentry guidelines, § 2L1.2); United States v. Laurico-Yeno, 590 F.3d

818, 823 (9th Cir. 2010) (same). Applying the Taylor categorical approach, the court in

Banuelos-Ayon looked to federal law governing removability, 8 U.S.C. § 1227(a)(2)(E), to

define “crime of domestic violence,” which included any crime of violence, as defined in

18 U.S.C. § 16, against a person committed by an individual with whom the person

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shares a child in common, and looked to California courts to determine the elements of

Penal Code § 273.5(a). 611 F.3d at 1084 (citing Johnson (Curtis) v. United States, 559

U.S. 133, 138 (2010)). The Ninth Circuit held that under state law, Ҥ 273.5(a) requires

that ‘corporal injury results from a direct application of force on the victim by the

defendant.” Banuelos-Ayon, 611 F.3d at 1085 (citing People v. Jackson, 77 Cal. App.

4th 574, 580 (2000)). The court in Banuelos-Ayon applied the categorical approach to

determine that a conviction under § 273.5(a) requires the direct use of force against a

person, and that this “direct application of force” requirement is equivalent to the

‘intentional use of force” necessary to satisfy the force clause of 18 U.S.C. § 16(a), which

requires a “higher degree of intent than negligent or merely accidental conduct.” /d. at

1082, 1084-85 (citing Leocal v. Ashcroft, 543 U.S. 1, 9 (2004): Fernandez-Ruiz v.

Gonzales, 466 F.3d 1121, 1132 (9th Cir. 2006) (en banc); Jackson, 77 Cal. App. 4th at

580).

Under controlling circuit authority, the court holds that movant’s prior conviction for

violation of § 273.5 qualifies as a crime of violence under the force clause of § 4B1.2(a).

Accordingly, movant has not demonstrated that he is entitled to relief from his sentence.

IV. CONCLUSION

For the reasons set forth above, the court DENIES Branch’s motion to vacate, set

aside or correct the sentence pursuant to 28 U.S.C. § 2255.

CERTIFICATE OF APPEALABILITY

To obtain a certificate of appealability (“COA”), a petitioner must make “a

substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

“Where a district court has rejected the constitutional claims on the merits, the showing

required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that

reasonable jurists would find the district court's assessment of the constitutional claims

debatable or wrong.” See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The court finds

that movant’s claim, that he was sentenced based on a finding that he had at least two

prior convictions that qualified as crimes of violence under the residual clause of U.S.S.G.

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§ 4B1.2 in violation of his rights to due process and his right against excessive

punishment, meets that standard. Accordingly, the cour. GRANTS a COA on that claim.

IT IS SO ORDERED.

Dated: October 21, 2016 4) )

PHYLUIS J. HAMILTON

United States District Judge

24

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS a L E D

FOR THE NINTH CIRCUIT AUG 17 2006

CATHY A. CATTERSON, CLERK

. U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 05-10602

Plaintiff - Appellee, D.C. No. CR-04-40022-MJJ

Vv.

MEMORANDUM *

JAMES BRANCH,

| Defendant - Appellant.

Appeal from the United States District Court

for the Northern District of California

Martin J. Jenkins, District Judge, Presiding

Argued and Submitted July 26, 2006

_San Francisco, California

Before: HUG, KLEINFELD. and PARZ, Circuit Judges.

James Branch appeals his 200-month sentence, contending that the sentence

is unreasonable because it does not sufficiently take into account his abusive

childhood. The Government contends that we do not have jurisdiction to review

his sentence and argues in the alternative that the sentence is reasonable. Branch

This disposition is not appropriate for publication and may not be cited

to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3,

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