Petition for Writ of Certiorari — Herbert Johnson, Petitioner v. United States
Supreme Court briefOct 16, 2023
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No.
In The Supreme Court 0f The United States
Herbert Johnson,
v.
Petitioner,
United States of America,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit
Petition for a Writ of Certiorari
RENE L. VALLADARES
Federal Public Defender
*Wendi L. Overmyer
Assistant Federal Public Defender
Office of the Federal Public Defender
411 E. Bonneville, Ste. 100
Las Vegas, Nevada 89101
(702) 388-6577
Wendi_Overmyer@fd.org
*Lead Counsel for Petitioner Herbert
Johnson
Dated: October 13, 2023
Questions Presented for Review
I.
For convictions and sentences to stand, they must not violate the
Constitution. Challenges to illegal 18 U.S.C. § 924(c) convictions necessarily
encompass illegal, mandatory, consecutive sentences. The first question presented
is whether an illegal sentence exception to plea agreement waivers can coexist
alongside a bar of illegal convictions when a sentence and conviction are bundled
together by statute.
II.
A guilty plea that includes an appellate waiver does not bar jurisdictional
challenges on appeal. Class v. United States, 138 S. Ct. 798 (2018). The second
question presented is whether a court can summarily enforce an appellate waiver to
bar motions to vacate convictions and mandatory prison sentences under 18 U.S.C.
§ 924(c) for which the district court lacked jurisdiction to enter a judgment of
conviction.
III.
The Circuits have confused categorical analysis—which examines only
statutory elements—with the contextually distinct rule that an aider and abettor is
punishable for the acts of a principal. The third question presented is whether
Circuits have failed to apply categorical analysis to aiding and abetting’s distinct
elements, which do not meet the requirements of 18 U.S.C. § 924(c)(3)(A)’s force
clause.
ii
Related Proceedings
United States v. Herbert Johnson, No. 20-17302 (9th Cir.)
United States v. Herbert Johnson, No. 2:14-cr-304-JCM (VCF) (D. Nev.)
iii
Table of Contents
Questions Presented for Review ................................................................................... ii
Related Proceedings...................................................................................................... iii
Table of Contents .......................................................................................................... iv
Table of Authorities ....................................................................................................... v
Petition for Certiorari .................................................................................................... 1
Opinions Below .............................................................................................................. 1
Jurisdiction .................................................................................................................... 1
Constitutional and Statutory Provisions Involved ....................................................... 1
Statement of the Case ................................................................................................... 3
I. Petitioner Johnson is sentenced to a mandatory minimum sentence under
18 U.S.C. § 924(c). ............................................................................................... 3
II. Petitioner Johnson moves to vacate the § 924(c) conviction and sentence
under this Court’s Davis decision....................................................................... 5
III. Petitioner Johnson appeals to the Ninth Circuit, which affirms based on
summary application of the collateral challenge waiver. .................................. 6
Reasons for Granting the Petition ................................................................................ 8
I. By mandating enforcement of appellate waivers in cases with illegal
unconstitutional convictions and sentences, the Ninth Circuit precludes
judicial enforcement of Davis relief. ................................................................... 8
II. The Ninth Circuit defies this Court’s precedent that holds jurisdictional
claims are not subject to waiver. ...................................................................... 11
III. Petitioner Johnson is entitled to relief because aiding and abetting
Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c). ......... 14
IV. Petitioner Johnson raises an issue of exceptional importance this Court
has not yet addressed, particularly given § 924(c)’s consecutive, mandatory
minimum sentences. ......................................................................................... 18
Conclusion .................................................................................................................... 20
Appendix
iv
Table of Authorities
Federal Constitution
Page(s)
U.S. Const. amend. V ........................................................................................... 1, 8, 9
Federal Cases
Blackledge v. Perry, 417 U.S. 21 (1974) .............................................................. 12, 13
Borden v. United States, 141 S. Ct. 1817 (2021) ................................................ 15, 17
Boston v. United States, 939 F.3d 1266 (11th Cir. 2019) ......................................... 18
Class v. United States, 138 S. Ct. 798 (2018) ..................................... ii, 11, 12, 13, 19
Deroo v. United States, 223 F.3d 919 (8th Cir. 2000) ................................................ 8
Ex parte Siebold, 100 U.S. 371 (1879) ...................................................................... 12
Garza v. Idaho, 139 S. Ct. 738 (2019) ............................................................. 8, 10, 19
In re Colon, 826 F.3d 1301 (11th Cir. 2016) ....................................................... 15, 18
Johnson v. United States, 576 U.S. 591 (2015) .................................................... 4, 19
Johnson v. United States, 544 U.S. 295 (2005) ........................................................ 10
Kidd v. United States, 929 F.3d 578 (8th Cir. 2019) ................................................ 15
McCoy v. United States, 266 F.3d 1245 (11th Cir. 2001) ................................... 13, 14
Menna v. New York, 423 U.S. 61 (1975) ............................................................. 12, 13
Norton v. Shelby Cnty., 118 U.S. 425 (1886) ............................................................ 12
Rosemond v. United States, 572 U.S. 65 (2014) ....................................................... 16
Stokeling v. United States, 139 S. Ct. 544 (2019) .................................................... 14
United States v. Ali, 991 F.3d 561 (4th Cir. 2021) ................................................... 15
United States v. Andis, 333 F.3d 886 (8th Cir. 2003) ................................................ 8
United States v. Bibler, 495 F.3d 621 (9th Cir. 2007) ................................................ 9
United States v. Blackstone, 903 F.3d 1020 (9th Cir. 2018) ...................................... 4
United States v. Borden, 16 F.4th 351 (2d Cir. 2021) .............................................. 10
v
United States v. Brown, 973 F.3d 667 (7th Cir. 2020) ............................................. 15
United States v. Davis, 139 S. Ct. 2319 (2019) .......................................... 4, 5, 6, 8, 9
United States v. Deiter, 890 F.3d 1203 (10th Cir. 2018) ......................................... 15
United States v. Easter, 66 F.3d 1018, 1024 (9th Cir. 1995) ................................... 16
United States v. Eckford, 77 F.4th 1228 (9th Cir. 2023) ......................................... 15
United States v. García-Ortiz, 904 F.3d 102 (1st Cir. 2018) .................................... 15
United States v. Goodall, 21 F.4th 555 (9th Cir. 2021),
cert. denied, 142 S. Ct. 2666 (2022), .............................................. 6, 7, 8, 9, 10, 11
United States v. McCoy, 995 F.3d 32 (2d Cir. 2021) ................................................ 15
United States v. McKelvey, 773 F. App’x 74 (3d Cir. 2019) ..................................... 15
United States v. Montilla, 870 F.2d 549 (9th Cir. 1989),
amended at 907 F.2d 115 (9th Cir. 1990) ............................................................. 13
United States v. Torres, 828 F.3d 1113 (9th Cir. 2016) ................................. 5, 6, 8, 9
United States v. Richardson, 948 F.3d 733 (6th Cir. 2020) ..................................... 15
United States v. St. Hubert, 883 F.3d 1319 (11th Cir. 2018) .................................. 14
United States v. Taylor, 142 S. Ct. 2015 (2022) ....................................................... 16
United States v. Thornsbury, 670 F.3d 532 (4th Cir. 2012) ...................................... 8
United States v. Wells, 29 F.4th 580 (9th Cir. 2022) ................................................. 9
Federal Statutes
18 U.S.C. § 2 .......................................................................................................... 2, 14
18 U.S.C. § 924 ........................ii, 2, 3 4, 5, 6, 8, 9, 10, 11, 12, 14, 15, 16, 17, 18, 19, 20
18 U.S.C. § 1951 ..................................................................................................... 2, 19
18 U.S.C. § 3231 ......................................................................................................... 11
18 U.S.C. § 3559 ......................................................................................................... 19
18 U.S.C. § 3583 ......................................................................................................... 19
28 U.S.C. § 1254 ........................................................................................................... 1
vi
28 U.S.C. § 2255 ................................................................................. 4, 5, 7, 10, 11, 20
Court Rules
Sup. Ct. R. 13.1 ............................................................................................................ 1
Secondary Sources
Hertz & Liebman, Federal Habeas Corpus Prac. & Proced. § 9.1, n.31 (2020) ...... 10
Ninth Circuit Manual of Model Criminal Jury Instructions,
§ 4.1 Aiding and Abetting (Sept. 2022) ................................................................ 17
U.S. Sent. Comm’n, Quick Facts: Federal Offenders in Prison (March 2023) ........ 19
U.S. Sent. Comm’n, Quick Facts: 18 U.S.C. § 924(c) Firearms Offenses
(July 2023) ............................................................................................................. 19
vii
Petition for Certiorari
Herbert Johnson petitions for a writ of certiorari to review the judgment of
the United States Court of Appeals for the Ninth Circuit.
Opinions Below
The Ninth Circuit’s decision is not published in the Federal Reporter, but
reprinted at United States v. Johnson, No. 20-17302, 2023 WL 4578787 (9th Cir.
July 18, 2023) (unpublished). Appx A.
The order of the district court is unreported, but reprinted at United States v.
Johnson, No. 2:14-cr-304-JCM (VCF), 2020 WL 5764461 (D. Nev. Sept. 25, 2020)
(unpublished). Appx C.
Jurisdiction
The Ninth Circuit entered its final order affirming the denial of Petitioner’s
motion to vacate on July 18, 2023. Appx A. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1254(a). This petition is timely per Sup. Ct. R. 13.1.
Constitutional and Statutory Provisions Involved
1.
U.S. Const. amend. V: “No person shall . . . be deprived of life, liberty, or
property, without due process of law.
1
2.
Title 18, Section 924(c), of the United States Code states, in relevant part:
(3) For purposes of this subsection the term “crime of violence” means an
offense that is a felony and-(A) has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course
of committing the offense.
3.
Title 18, Section 2, of the United States Code, provides:
(a) Whoever commits an offense against the United States or aids, abets,
counsels, commands, induces or procures its commission, is punishable as a
principal.
(b) Whoever willfully causes an act to be done which if directly performed by
him or another would be an offense against the United States, is punishable
as a principal.
4.
Hobbs Act robbery, 18 U.S.C. § 1951, provides in relevant part:
(a) Whoever in any way or degree obstructs, delays, or affects
commerce or the movement of any article or commodity in
commerce, by robbery or extortion or attempts or conspires so to do,
or commits or threatens physical violence to any person or property
in furtherance of a plan or purpose to do anything in violation of
this section shall be fined under this title or imprisoned not more
than twenty years, or both.
(b) As used in this section—
(1) The term “robbery” means the unlawful taking or obtaining
of personal property from the person or in the presence of
another, against his will, by means of actual or threatened force,
or violence, or fear of injury, immediate or future, to his person
or property, or property in his custody or possession, or the
person or property of a relative or member of his family or of
anyone in his company at the time of the taking or obtaining.
2
Statement of the Case
Petitioner Herbert Johnson was sentenced to over 14 years in federal prison
in 2015. Seven years of the term consists of an unconstitutional, consecutive, and
mandatory sentence imposed for using a firearm during a crime of violence under 18
U.S.C. § 924(c).
I.
Petitioner Johnson is sentenced to a mandatory minimum sentence under 18
U.S.C. § 924(c).
Las Vegas police officers arrested Johnson in August 2013 following a string
of six robberies by two men. Presentence Report (PSR) ¶¶ 6-29.
At plea, the district court described the robberies as “run-of-the-mill
robberies,” questioning the government’s decision to pursue federal charges. ER106–07. Before accepting Johnson’s guilty plea, this Court ordered a competency
evaluation based on a diagnosis of “Mild Intellectual Disability (former Mild Mental
Retardation)” finding Johnson comprehends at a 2.8 grade level. ER-41. The
evaluation found Johnson competent to plead guilty. ER-115.
Just 23 years old, Johnson pled guilty in a written plea agreement to six
counts of Aiding and Abetting Hobbs Act robbery (Counts One, Two, Three, Four,
Five, and Six) and one count of brandishing a firearm during and in relation to a
crime of violence. The predicate for the § 924(c) charge was Count Five—Aiding and
Abetting Hobbs Act robbery. 1-ER-144–45. 1
1 Johnson’s co-defendant, Quincy Stephens, was similarly charged under a
separate case number, United States v. Stephens, No. 2:13-cr-00351-LDG-VCF (D.
Nev.), and also pled guilty.
3
Johnson’s plea agreement contained a partial appellate waiver preserving the
right to appeal any upward departure or variance from the sentencing guideline
range and “knowingly and expressly” waiving: “the right to appeal any other aspect
of the conviction or sentence” and “all collateral challenges, including any claims
under 28 U.S.C. § 2255, to his conviction, sentence, and the procedure by which the
court adjudicated guilt and imposed sentence, except non-waivable claims of
ineffective assistance of counsel.” Appx E:29a–30a.
The district court sentenced Johnson to concurrent 87-month sentences on
Counts 1-6, and a mandatory consecutive 84-month sentence on Count 7, for a total
171-months (14 years) of imprisonment. ER-82. When imposing sentence, the court
recognized Johnson has “much potential” and his sentencing was a “sad” and
“tragic” day. ER-82. Johnson did not pursue a direct appeal.
Two years after his federal sentencing, the Ninth Circuit held that
defendants could not raise post-conviction § 2255 challenges § 924(c) sentences
under Johnson v. United States, 576 U.S. 591 (2015). United States v. Blackstone,
903 F.3d 1020 (9th Cir. 2018).
As a result of additional, unrelated state convictions, Johnson remains in the
custody of Nevada Department of Corrections completing a state sentence. He
becomes eligible for state parole in October 2036—when he will be 44 years old. If
Johnson receives parole, he will then serve his 14-year federal sentence.
4
II.
Petitioner Johnson moves to vacate the § 924(c) conviction and sentence
under this Court’s Davis decision.
Three years after Johnson’s sentencing, this Court held that imposing a
mandatory minimum sentence under 18 U.S.C. § 924(c)(3)(B) violates the
Constitution’s guarantee of due process. United States v. Davis, 139 S. Ct. 2319
(2019). Now able to challenge his sentence for the first time, Petitioner Johnson
timely sought relief within a year of Davis, moving to vacate the 18 U.S.C. § 924(c)
conviction under 28 U.S.C. § 2255 in the District of Nevada. Dkt. 51.
Johnson argued the § 924(c) conviction and sentence must be vacated because
the predicate offenses no longer qualified as a crime of violence after Davis. Dkt. 51.
Johnson challenged the § 924(c) conviction and attendant mandatory sentence
under Davis on due process, fundamental miscarriage of justice, and jurisdictional
grounds, and argued his plea agreement’s appellate waiver did not waive his right
to collaterally attack his illegal, unconstitutional conviction and sentence. Dkt. 51,
pp.6–7, 19.
The government opposed, arguing that: (1) Petitioner’s claims were
procedurally defaulted by failing to raise the claim on direct appeal; (2) Petitioner’s
claims were foreclosed by precedent finding the predicate qualifies as a crime of
violence; and (3) Petitioner’s claims were barred by the appellate waiver in the plea
agreement. ECF 53.
Johnson replied to all arguments. Dkt. 54. His reply specifically explained
that Ninth Circuit precedent, United States v. Torres, 828 F.3d 1113, 1125 (9th Cir.
5
2016), precluded enforcing the collateral challenge waivers when the challenge is to
the legality of the sentence, which includes unconstitutional sentences. Dkt. 54, p.8.
Without a hearing, the district court denied the motion to vacate. Appx C:5a–
7a. In its denial order, the district court did not address the residual clause of 18
U.S.C. § 924(c)(3)(B). Instead, the court found Johnson’s claims procedurally
defaulted for not raising the Davis challenge—a case decided in 2019—on direct
appeal in 2016. Appx C:5a–6a. The denial order did not address the plea
agreement’s appellate waiver. The district court denied a certificate of appealability
(“COA”). ER-8.
III.
Petitioner Johnson appeals to the Ninth Circuit, which affirms based on
summary application of the collateral challenge waiver.
Johnson timely appealed, requesting a COA. The Ninth Circuit granted a
COA for two issues: “[1] whether the district court properly determined that
appellant’s claim is procedurally defaulted and, if not, [2] whether appellant is
entitled to relief on the merits.” Appx B:3a.
After the opening and answering briefs were filed, the Ninth Circuit issued
United States v. Goodall, 21 F.4th 555, 558 (9th Cir. 2021), cert. denied, 142 S. Ct.
2666 (2022), holding a defendant’s appellate waiver barred his direct appeal
challenge to a § 924(c) conviction that rested on conspiracy and its attendant
mandatory prison sentence. In Goodall, the Ninth Circuit held the appeal was
barred by the plea agreement’s appellate waiver of “the right to appeal any other
aspect of the conviction or sentence and any order of restitution or forfeiture.” Id. at
559–62. The Goodall panel reasoned the “illegal” sentence exception to enforcing
6
appellate waivers did not apply because the panel viewed the defendant as
challenging only his conviction. Id. at 562–65. But Goodall declined to consider—
and therefore left open—whether the miscarriage of justice exception to enforcing a
waiver would apply in this context. Id. at 565 n.6.
Johnson’s reply brief addressed why Goodall did not apply to his motion to
vacate. Johnson specifically argued that (1) his § 2255 motion to vacate, unlike the
direct appeal in Goodall, falls outside the scope of the appellate waiver because 28
U.S.C. § 2255 specifically applies to motions by federal prisoners to vacate illegal
sentences, a recognized exception to appellate waivers; (2) enforcing the waiver
would cause a miscarriage of justice, which unlike Goodall, Johnson sufficiently as
an exception to the appellate waiver below; and (3) jurisdictional challenges cannot
be waived.
The Ninth Circuit affirmed denial of Johnson’s motion to vacate, due to
Goodall and the appellate waiver in the plea agreement. App. A:1a. The Ninth
Circuit found: Johnson challenged an illegal conviction, not an illegal sentence; the
miscarriage-of-justice exception to waivers was not raised in district court; and the
district court had jurisdiction to enter judgment even if the indictment did not
charge a crime against the United States. App. A:1a.
Johnson now seeks this Court’s review to clarify 28 U.S.C. § 2255 and
appellate waiver exceptions.
7
Reasons for Granting the Petition
I.
By mandating enforcement of appellate waivers in cases with illegal
unconstitutional convictions and sentences, the Ninth Circuit precludes
judicial enforcement of Davis relief.
“No appeal waiver serves as an absolute bar to all appellate claims.” Garza v.
Idaho, 139 S. Ct. 738, 744 (2019). For convictions and sentences to stand, they must
not violate the constitution. In Davis, this Court held that increasing a defendant’s
sentence under the residual clause at § 924(c)(3)(B) violates due process of law. 139
S. Ct. at 2327; U.S. Const. amend. V.
Circuits agree that appellate waivers do not bar challenges to illegal,
unconstitutional sentences. See, e.g., Torres, 828 F.3d at 1124-25; United States v.
Thornsbury, 670 F.3d 532, 539–40 (4th Cir. 2012); United States v. Andis, 333 F.3d
886, 891 (8th Cir. 2003). The same limitations for appellate waiver apply in the
collateral review context. Deroo v. United States, 223 F.3d 919, 923 (8th Cir. 2000)
(finding appellate waiver of collateral challenge rights “are not absolute”).
Challenges to illegal “sentences” encompass illegal convictions. Yet the
Ninth Circuit’s Goodall panel summarily concluded, post-Davis, that a defendant
challenging his unconstitutional conviction and resulting mandatory sentence under
§ 924(c) was not a challenge to an illegal sentence—it only challenged an illegal
conviction. Goodall, 21 F.4th at 558.
The critical issue here is that an illegal sentence exception to plea agreement
waivers cannot exist alongside a bar of illegal convictions when a sentence and
conviction are bundled together by statute.
8
The Ninth Circuit in Goodall took pains to clarify it did not overturn
precedent that an appellate waiver does not bar collateral review of an illegal
sentence. Goodall, 21 F.4th at 563–65 (discussing Torres, 828 F.3d at 1125); see
also United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007) (an appeal waiver
will not apply if the sentence violates the law; a sentence is illegal if it violates the
Constitution). And after Goodall, the Ninth Circuit reiterated that appellate
waivers do not bar a challenge to an illegal sentence. United States v. Wells, 29
F.4th 580, 584, 586–87 (9th Cir. 2022) (“[A]n appeal waiver does not apply to an
unlawful sentence, as the Constitution is the supreme law of the land.”). Goodall
acknowledged that an “illegal sentence is one ‘not authorized by the judgment of
conviction, . . . in excess of the permissible statutory penalty for the crime, or [that]
is in violation of the Constitution.’” Id. . But illogically, the panel concluded an
illegal sentence “does not include illegal convictions.” Id. . The Ninth Circuit
errantly made a distinction without difference.
A conviction for a § 924(c) offense that rests on the unconstitutional residual
clause violates due process and thus is illegal. Davis, 139 S. Ct. at 2336. In Davis,
this Court held that increasing a defendant’s sentence under the residual clause at
§ 924(c)(3)(B) violates due process of law. 139 S. Ct. at 2327; U.S. Const. amend. V.
Thus, the sentence, i.e., the “heightened criminal penalties” of § 924(c), are only
authorized based on § 924(c)’s constitutional portion—the unconstitutional residual
clause cannot authorize a court to impose sentence. Id. at 2324.
9
Goodall not only conflicts with this Court’s precedent, but also with the
statutory language of 28 U.S.C. § 2255. When a defendant files a § 2255 motion, he
ultimately asserts “that the sentence was imposed in violation of the Constitution or
laws of the United States. 28 U.S.C. § 2255(a) (emphasis added); see also Johnson
v. United States, 544 U.S. 295, 299 (2005) (discussing § 2255 limitations). Goodall,
in contrast, was a direct appeal and thus did not involve correction of sentences
under 28 U.S.C. § 2255. According to a leading treatise on the matter, a defendant’s
challenge to his sentence necessarily encompasses all “challenges to the legality of
holding the petitioner in custody at all,” including “typically the legality of the
underlying conviction.” Hertz & Liebman, Federal Habeas Corpus Prac. & Proced. §
9.1, n.31 (2020) (collecting cases) (emphasis added). Illegal convictions and illegal
sentences are inextricably linked, at least when the statute of conviction requires
the district court to impose a mandatory sentence upon conviction.
Goodall also precludes judicial enforcement of Davis relief by placing such
power solely within the government’s discretion. “[A] waived appellate claim can
still go forward if the prosecution forfeits or waives the waiver.” Garza, 139 S. Ct. at
44–45. Often, the government has selectively chosen not to enforce appellate
waivers in collateral challenges to illegal § 924(c) convictions. See, e.g., United
States v. Borden, 16 F.4th 351 (2d Cir. 2021) (recognizing defendant waived right to
appeal convictions, but government chose not to enforce waiver for § 924(c)
conviction). Providing relief from unconstitutional convictions and sentences rests
10
with the federal courts—it is not subject to the inconsistent and arbitrary whims of
a government prosecutor.
Mandating enforcement of appellate waivers to preclude relief from illegal,
unconstitutional convictions and mandatory consecutive sentences diverges from
this Court’s precedent and from justice. This Court should grant review of this
important federal question to bring the Ninth Circuit in line with this Court’s
precedent that general appellate waivers do not preclude challenges to illegal
convictions and sentences.
II.
The Ninth Circuit defies this Court’s precedent that holds jurisdictional
claims are not subject to waiver.
At issue is whether a plea agreement’s appellate waiver can bar a
jurisdictional challenge to a conviction for a non-existent federal offense. The Ninth
Circuit’s holding below in Goodall, 21 F.4th at 563, that such challenges are
inherently waived by a general appellate waiver, conflicts with this Court’s holding
in Class v. United States, 138 S. Ct. 798 (2018). Congress limits federal judicial
jurisdiction by stating the “district courts of the United States shall have original
jurisdiction . . . of all offenses against the laws of the United States.” 18 U.S.C. §
3231. Where the charged conduct is not a federal offense, a district court lacks
jurisdiction. Class held that a defendant cannot inherently waive a constitutional
challenge to the government’s lack of jurisdiction to prosecute. 138 S. Ct. at 804.
Failing to state an offense rendered the government without the power to
prosecute Johnson for the § 924(c) offense. Johnson raised a jurisdictional challenge
under 28 U.S.C. § 2255 by arguing that his § 924(c) conviction and sentence are
11
illegal and unconstitutional because the predicate offense charged is not a crime of
violence under 18 U.S.C. § 924(c)(3)(A)’s force clause, and thus the government
failed to charge a federal offense. Dkt. 51.
The “right that he asserts and that we accept today is the right not to be
haled into court at all upon the felony charge.” Blackledge v. Perry, 417 U.S. 21, 30
(1974); Menna v. New York, 423 U.S. 61, 62 (1975); see also Norton v. Shelby Cnty.,
118 U.S. 425, 442 (1886) (“An unconstitutional act is not a law; it confers no rights;
it imposes no duties; it affords no protection; it creates no office; it is, in legal
contemplation, as inoperative as though it had never been passed.”); Ex parte
Siebold, 100 U.S. 371, 376–77 (1879) (An offense created by an unconstitutional act
is not a crime, and a conviction under it is “illegal and void, and cannot be a legal
cause of imprisonment.”). Without a lawful crime-of-violence predicate, Johnson
could not be prosecuted, convicted, or sentenced for the § 924(c) count at all. This
claim, “‘judged on its face’ based upon the existing record, would extinguish the
government’s power to ‘constitutionally prosecute’ the defendant if the claim were
successful.” Class, 138 S. Ct. at 806.
Under the Ninth Circuit’s Goodall opinion, however, Johnson is barred from
receiving the relief afforded by Davis, 139 S. Ct. 2319. This Court has rejected such
a position. Class clarified that “where on the face of the record the court had no
power to enter the conviction or impose the sentence” the challenge cannot be
inherently waived. Class, 138 S. Ct. at 804. Goodall stands in defiance of this
precedent.
12
Class reaffirmed the Menna-Blackledge doctrine by holding a written pleaagreement waiver cannot inherently waive the right to challenge “the Government’s
power to ‘constitutionally prosecute’ him.” Class, 138 S. Ct. at 804–05 (citation
omitted). Like Class, Johnson’s constitutional claim for prosecution of a non-federal
offense is not expressly waived in the appellate waiver:
[Petitioner’s] challenge does not in any way deny that he engaged in
the conduct to which he admitted. Instead, like the defendants in
Blackledge and Menna, he seeks to raise a claim which, “judged on its
face” based upon the existing record, would extinguish the
government’s power to “constitutionally prosecute” the defendant if the
claim were successful.
Class, 138 S. Ct. at 805 (citing Blackledge v. Perry, 417 U.S. 21 (1974); and Menna
v. New York, 423 U.S. 61 (1975) (per curiam)). Under the Menna-Blackledge
doctrine, “a plea of guilty to a charge does not waive a claim that—judged on its
face—the charge is one which the [government] may not constitutionally prosecute.”
Class, 138 S. Ct. at 803-04 (quoting Menna, 423 U.S. at 63). Thus, “the terms of any
plea-agreement provision waiving the right to appeal or to collaterally attack the
sentence” did not “expressly refer to a waiver of the appeal right” for claims the
“court had no power to enter the conviction or impose the sentence.” Id. at 807.
The Ninth Circuit’s Goodall opinion also contradicts its own earlier precedent
holding that “[c]laims that ‘the applicable statute is unconstitutional or that the
indictment fails to state an offense’ are jurisdictional claims.” United States v.
Montilla, 870 F.2d 549, 552 (9th Cir. 1989), amended at 907 F.2d 115 (9th Cir.
1990). Other circuits agree an appeal waiver does not waive a jurisdictional defect.
See, e.g., McCoy v. United States, 266 F.3d 1245, 1249 (11th Cir. 2001) (“Because
13
parties cannot by acquiescence or agreement confer jurisdiction on a federal court, a
jurisdictional defect cannot be waived or procedurally defaulted . . . a judgment
tainted by a jurisdictional defect must be reversed”); see also United States v. St.
Hubert, 883 F.3d 1319, 1326 (11th Cir. 2018) (a district court lacks jurisdiction to
accept a guilty plea to a “non-offense”).
This Court should grant review to bring the Ninth Circuit’s errant waiver law
in line with this Court’s precedent that jurisdictional claims cannot be waived.
III.
Petitioner Johnson is entitled to relief because aiding and abetting Hobbs Act
robbery is not a crime of violence under 18 U.S.C. § 924(c).
This Court has not addressed whether aiding and abetting Hobbs Act
robbery is a crime of violence under 18 U.S.C. § 924(c)(3)(A)’s force clause. The
aiding and abetting statute provides: “[w]hoever commits an offense against the
United States or aids, abets, counsels, commands, induces or procures its
commission, is punishable as a principal.” 18 U.S.C. § 2(a).
For a predicate offense to qualify under § 924(c)’s force clause, the offense
must have “as an element the use, attempted use, or threatened use of physical
force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). This
means the offense must necessarily require two elements: (1) violent physical force
capable of causing physical pain or injury to another person or property, Stokeling
v. United States, 139 S. Ct. 544, 554 (2019) (citing Johnson v. United States, 559
U.S. 133, 140 (2010)); and (2) the use of force must be intentional and not merely
14
reckless or negligent, Borden v. United States, 141 S. Ct. 1817 (2021). 2 This Court
explained that the “[categorical] approach is under-inclusive by design: It expects
that some violent acts, because charged under a law applying to non-violent
conduct, will not trigger enhanced sentences.” Id. at 1832 (emphasis in original).
Johnson acknowledges the Ninth Circuit’s recent published opinion in United
States v. Eckford, 77 F.4th 1228, 1235 (9th Cir. 2023), holding aiding and abetting
Hobbs Act robbery qualifies as a § 924(c) crime of violence—joining its sister
circuits. 3 The Circuits’ analysis of this predicate is inaccurate, however, considering
this Court’s controlling precedent.
This Court previously addressed aiding and abetting a federal offense to
clarify that a defendant need only facilitate commission of the offense—he need not
2 While Borden addressed the force clause in the Armed Career Criminal Act
(ACCA) at 18 U.S.C. § 924(e)(2)(B)(i), the opinion equally applies to § 924(c). This
Court interprets the § 924(c) force clause as materially similar to the ACCA’s force
clause. Davis, 139 S. Ct. at 2326–27.
3 See United States v. García-Ortiz, 904 F.3d 102, 109 (1st Cir. 2018) (finding,
with no categorical analysis, aiding and abetting Hobbs Act robbery is a § 924(c)
crime of violence because aiders and abettors are punishable as principals), cert.
denied, 139 S. Ct. 1208 (2019); United States v. McCoy, 995 F.3d 32, 57-58 (2d Cir.
2021) (same); United States v. McKelvey, 773 F. App’x 74, 75 (3d Cir. 2019) (same);
United States v. Ali, 991 F.3d 561, 573-74 (4th Cir. 2021) (same); United States v.
Richardson, 948 F.3d 733, 741–42 (6th Cir.) (same), cert. denied, 141 S. Ct. 344
(2020); United States v. Brown, 973 F.3d 667, 697 (7th Cir. 2020) (same), cert.
denied, 141 S. Ct. 1253 (2021); Kidd v. United States, 929 F.3d 578, 581 (8th Cir.
2019) (same), cert. denied, 140 S. Ct. 894 (2020); In re Colon, 826 F.3d 1301, 1305
(11th Cir. 2016) (denying application for successor motion to vacate, noting aiding
and abetting Hobbs Act robbery is a § 924(c) crime of violence without applying
categorical analysis); see also United States v. Deiter, 890 F.3d 1203, 1214-16 (10th
Cir. 2018) (finding aiding and abetting bank robbery qualifies as an ACCA violent
felony because the defendant must intend to commit the underlying offense,
declining to apply categorical analysis to aiding and abetting’s elements), cert.
denied, 139 S. Ct. 647 (2018).
15
participate in every offense element. Rosemond v. United States, 572 U.S. 65, 73
(2014). Indeed, “[t]he quantity of assistance [is] immaterial, so long as the
accomplice did something to aid the crime.” Id. (cleaned up). And this Court
recently held, “[t]he elements clause does not ask whether the defendant committed
a crime of violence or attempted to commit one. It asks whether the defendant did
commit a crime of violence… .” United States v. Taylor, 142 S. Ct. 2015, 2022 (2022)
(emphasis added). Thus, the courts must consider whether an aider and abettor—
not the principal—is required to necessarily “use” force under its statutory
elements.
Applying the categorical analysis to aiding and abetting reveals that an
aiding and abetting conviction lacks the necessary use, attempt to use, or threat of
violent physical force to be convicted. It is sufficient for the prosecution to prove the
defendant participated in a criminal scheme “knowing its extent and character.”
Rosemond, 572 U.S. at 77 (citing United States v. Easter, 66 F.3d 1018, 1024 (9th
Cir. 1995)). And a defendant “can be convicted as an aider and abettor without
proof that he participated in each and every element of the offense.” Id. at 73. “The
quantity of assistance [is] immaterial, so long as the accomplice did something to
aid the crime.” Id. (cleaned up). Thus, aiding and abetting is overbroad and does
not qualify as a § 924(c) crime of violence.
Further, the elements for aiding and abetting Hobbs Act robbery do not
require the necessary mens rea under the force clause—intent to use physical force
to harm another. The only element of aiding and abetting that mentions mens rea
16
is the third element—intent to facilitate Hobbs Act robbery. See Ninth Circuit
Manual of Model Criminal Jury Instructions, § 4.1 Aiding and Abetting (Sept.
2022). But this element does not render the offense a crime of violence. To satisfy
the force clause, the statutory elements of the predicate offense must require intent
to harm another—meaning there must be a “conscious object (not the mere
recipient) of the force.” Borden, 141 S. Ct. at 1826. The resulting harm is not
dispositive, but whether the statute requires the defendant to specifically intend to
harm another. Id. at 1831 n.8. It is insufficient under the elements clause for an
offense to merely require intentional performance of an act. Id. at 1826.
Borden narrowed application of § 924(c)’s mandatory penalties by
“demand[ing] that the perpetrator direct his action at, or target, another
individual,” consciously intending harm to another. Borden, 141 S. Ct. at 1825–27.
Someone who does not intend a resulting harm from his conduct and does not “pay
[]sufficient attention to the potential application of force” therefore does “not use[]
force ‘against’ another person in the targeted way that clause requires.” Id. at 1827.
Borden, therefore, limits the severe § 924(c) penalty to “the special danger”
associated with a “small percentage of repeat offenders” who pose “uncommon
danger”—not “ordinary offenders” who engage in dangerous and ill-advised conduct.
Id. at 1822–23, 1830–31, 1834 (cleaned up). Thus, under Borden, the government
cannot bootstrap intent to commit a crime to mean all acts of aiding and abetting
include violent force.
17
Several scenarios illustrate aiding and abetting robbery without the use,
attempted use, or threatened use of force. A defendant need not even be present
during the substantive offense to be convicted of aiding and abetting. Boston v.
United States, 939 F.3d 1266, 1272 (11th Cir. 2019) (Pryor, J., concurring). Indeed,
“a defendant could aid and abet a robbery without ever using, threatening, or
attempting any force at all,” including: “lending the principal some equipment,
sharing some encouraging words, or driving the principal somewhere.” In re Colon,
826 F.3d at 1306 (Martin, J., dissenting); see also Boston, 939 F.3d at 1272 (Pryor,
J., concurring) (providing an example of serving as the getaway driver to principal).
Aiding and abetting merely requires the defendant to aid or abet one element of
Hobbs Act robbery, which does not encompass the use, attempted use, or threatened
use of violent physical force against another person. Thus, aiding and abetting
Hobbs Act robbery does not qualify under § 924(c)’s elements clause.
Taylor and Borden do not permit Petitioner’s conviction under § 924(c) for a
non-federal offense to be sustained. Petitioner asks this Court to grant review and
clarify that aiding and abetting Hobbs Act robbery is overbroad and does not qualify
as a predicate crime of violence under 18 U.S.C. § 924(c).
IV.
Petitioner Johnson raises an issue of exceptional importance this Court has
not yet addressed, particularly given § 924(c)’s consecutive, mandatory
minimum sentences.
The gravity of the erroneous Ninth Circuit opinion below is severe. But for
the illegal, unconstitutional § 924(c) convictions and sentences, Johnson—and
thousands like him—would not face mandatory consecutive terms of 7 years or
18
more. As one of the most draconian sentencing statutes, 18 U.S.C. § 924(c) imposes
graduated, consecutive, mandatory minimum sentences ranging from five years to
life imprisonment. 4
Petitioner Johnson is just one of the thousands of defendants facing a
consecutive mandatory minimum sentence for a § 924(c) conviction. According to
the Sentencing Commission’s latest statistics, approximately 20,500 individuals
(14.7% of the federal prison population) are serving a § 924(c) mandatory sentence.
U.S. Sent. Comm’n, Quick Facts: Federal Offenders in Prison (March 2023). 5 And
in Fiscal Year 2022, another 2,700 individuals were convicted of a § 924(c) offense.
U.S. Sent. Comm’n, Quick Facts: 18 U.S.C. § 924(c) Firearms Offenses (July 2023). 6
Over 90% of all federal convictions involve a guilty plea. U.S. Sent. Comm’n,
Federal Offenders in Prison. While this Court has addressed aspects of appellate
waivers in plea agreements, 7 this Court has not yet addressed, post-Johnson v.
United States, 576 U.S. 591 (2015), whether an appellate waiver can bar a
4 Petitioner’s conviction under § 924(c) also resulted in a higher supervision
term (5 years) than would have been imposed for Aiding and Abetting Hobbs Act
robbery (3 years). See 18 U.S.C. § 1951(a); 18 U.S.C. § 3559(a) (felony
classifications); 18 U.S.C. § 3583(b) (authorized terms of supervised release).
5 Available at https://www.ussc.gov/research/quick-facts/federal-offenders-
prison.
6 Available at https://www.ussc.gov/research/quick-facts/section-924c-
firearms.
7 See, e.g., Garza, 139 S. Ct. 738 (presumption of prejudice from attorney’s
failure to file notice of appeal applies whether or not the defendant signed an appeal
waiver); Class, 138 S. Ct. 798 (appellate waiver does not, by itself, bar a defendant
from challenging the constitutionality of the statute of conviction on direct appeal).
19
challenge under 28 U.S.C. § 2255 to an illegal, unconstitutional 18 U.S.C. § 924(c)
conviction and sentence.
Review is necessary to stop the erosion of habeas relief for illegal,
unconstitutional convictions and sentences.
Conclusion
An unconstitutional, illegal conviction and sentence cannot be waived, nor
can a conviction and sentence that lack jurisdiction. Because the Ninth Circuit’s
holding below stands in contradiction to this Court’s precedent, Johnson asks this
Court to grant review.
Dated: October 13, 2023.
Respectfully submitted,
RENE L. VALLADARES
Federal Public Defender
/s/ Wendi L. Overmyer
*Wendi L. Overmyer
Assistant Federal Public Defender
Office of the Federal Public Defender
411 E. Bonneville, Ste. 250
Las Vegas, Nevada 89101
(702) 388-6577
Wendi_Overmyer@fd.org
*Lead Counsel for Petitioner Herbert
Johnson
20
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.