Sorensen v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
SHAWN RUSSELL SORENSEN,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.
4:19-CV-04190-KES
REPORT AND RECOMMENDATION
This matter is before the court on Shawn Russell Sorensen’s
motion to vacate, correct, or set aside his sentence pursuant to 28 U.S.C.
§ 2255. See Docket No. 1.1 Respondent the United States of America
(“government”), moves to dismiss Mr. Sorensen’s § 2255 petition without
holding an evidentiary hearing. See Docket No. 26. Mr. Sorensen resists
the motion. See Docket No. 35. Mr. Sorensen’s case was referred to this
magistrate judge for a recommended disposition pursuant to 28 U.S.C.
§ 636(b)(1)(A) and (B) and pursuant to the October 16, 2014, standing
order of the Honorable Karen E. Schreier, United States District Judge.
1 In this opinion, the court cites to documents filed in this civil habeas
case by simply citing the docket number of the document. The court
cites to documents in Mr. Sorenson’s underlying criminal case, United
States v. Sorensen, 4:16-cr-40062 (D.S.D.), by citing to the docket
number in the criminal case preceded by “CR.”
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FACTS
A. Proceedings in the District Court
Mr. Sorensen was indicted by a federal grand jury in the District of
South Dakota on May 10, 2016, and charged with conspiracy to
distribute 500 grams or more of a mixture or substance containing
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. A
superseding indictment was filed on September 20, 2016, which added a
count to the indictment charging Mr. Sorensen with one count of
possessing a firearm after having been convicted of a felony, in violation
of 18 U.S.C. § 922(g)(1). See CR Docket No. 70. Gayle Hartz was named
as Mr. Sorensen’s co-conspirator in count 1 of both charging documents.
Attorney Clint Sargent was appointed to represent Mr. Sorensen at
his initial appearance on May 23, 2016. See CR Docket No. 18.
Thereafter, on June 2-3, 2016, Mr. Sargent withdrew because
Mr. Sorensen retained private counsel, attorneys Rick Ramstad, Bruce
Rivers, and Coley Grostyan. See CR Docket Nos. 36, 37, 39, 40, 41, and
89. The Supreme Court’s opinion in Mathis v. United States, ___ U.S.
___, 136 S. Ct. 2243 (2016), discussed at length in the DISCUSSION section
of this opinion, was decided on June 23, 2016, shortly after
Mr. Sorenson’s replacement counsel made their initial notice
of appearance.
On September 16, 2016, the government filed an information and
notice pursuant to 21 U.S.C. § 851 of its intent to seek an increased
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punishment based on Mr. Sorensen’s prior convictions for felony drug
offenses pursuant to 21 U.S.C. § 841(b)(1)(A), as defined in 21 U.S.C.
§ 802(44). The government notified Mr. Sorensen that those convictions
were: (1) a conviction that occurred on December 2, 2002, in the Second
Judicial Circuit, Minnehaha County, South Dakota, for possession of a
controlled substance; and (2) a conviction that occurred on March 10,
2008, in the Superior Court for Mojave County, Arizona, for transporting
or selling a dangerous drug. See CR Docket No. 66. After Mr. Sorensen
was convicted, but before sentencing, the government filed an amended
information to correct/clarify that the Arizona conviction was for
possession, rather than transportation or sale, of a dangerous drug. See
CR Docket No. 143. At sentencing, the district court, the Honorable
Karen E. Schreier, determined that the amended information permissibly
and timely corrected “clerical mistakes” pursuant to 21 U.S.C.
§ 851(a)(1). See CR Docket No. 157, pp. 5-7 (sentencing transcript)
(hereinafter “ST”).
Mr. Sorenson’s co-defendant, Ms. Hartz, entered into a plea
agreement before trial. See CR Docket No. 67. Mr. Sorensen proceeded
to a jury trial on October 4, 5 and 6, 2016. See CR Docket No. 137
(hereinafter “TT”). At trial, twenty-two witnesses testified for the
government including Ms. Hartz. See TT, pp. 254-90.
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At trial, the evidence established the following:2 On April 25, 2016,
a United States Postal Inspector in Minneapolis applied for and received
a search warrant for a package sent from a post office in Arizona,
addressed to “Gail Hartz, 404 S. Donaldson, Luvern [sic], Minn. 56156.”
A certified drug dog alerted to the odor of narcotics. The return label on
the package read, “Dave Beckman, 13580 W. Port Royale, Suprise [sic],
AZ, 85379.” Upon searching the package pursuant to the warrant, the
postal inspector found clothing, toilet paper, paper towels, 192 grams of
cocaine, and over four kilograms of methamphetamine wrapped in
bundles of plastic and black electrical tape. The postal inspector
contacted a counterpart in Sioux Falls, South Dakota, which is very near
Luverne, Minnesota, and requested that he conduct a controlled delivery
of the package, which the Sioux Falls inspector did.
Before the package was delivered to Ms. Hartz’s home, an
anticipatory search warrant was granted for her home and her person.
After the controlled delivery to her home in Luverne, Minnesota, officers
observed a vehicle drive away from Ms. Hartz’s home. An officer stopped
the vehicle and arrested the driver, who was Ms. Hartz. Meanwhile other
officers executed the warrant to search Ms. Hartz’s home, and located
2 These are the facts almost verbatim as they were recited in the
BACKGROUND section of the Eighth Circuit opinion on Mr. Sorensen’s
direct appeal, United States v. Sorensen. 893 F.3d 1060, 1063-64 (8th
Cir. 2018). In his § 2255 motion and supporting brief, Mr. Sorensen
contests that court’s legal conclusions, but he has not contested the
accuracy of the background facts as recited in the opinion.
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the unopened delivered package. Ms. Hartz informed the officers she had
received the package on behalf of Shawn Sorensen. Ms. Hartz had
communicated with Mr. Sorensen via text message prior to its delivery.
Just after the package was delivered, Ms. Hartz texted Mr. Sorensen,
stating, “[i]ts here. So get ur butt here.” Mr. Sorensen replied, “I’m on
my way.”
The Minnesota agents informed members of the Sioux Falls Area
Drug Task Force (SFADTF) about Mr. Sorensen’s involvement. SFADTF
began conducting surveillance at Mr. Sorensen’s residence in Sioux
Falls. The SDADTF and Minnesota authorities cooperated to follow
Mr. Sorensen from his home in Sioux Falls to Ms. Hartz’s home in
Luverne, Minnesota. Officers arrested Mr. Sorensen immediately upon
his entrance into Ms. Hartz’s home in Luverne.
After his arrest, officers found $15,700 in cash in Mr. Sorensen’s
pocket. A search warrant of Mr. Sorensen’s Sioux Falls home yielded
methamphetamine, drug paraphernalia, and a USPS mailing label for
what appeared to be a different package Mr. Sorensen had mailed to
Ms. Hartz on September 21, 2015. That label’s return address was also
“Dave Beckman” in Phoenix, Arizona. A search warrant was also
obtained for Mr. Sorensen’s vehicle. That search uncovered
Mr. Sorensen’s driver’s license, treasury checks addressed to
Mr. Sorensen, four cell phones, methamphetamine, marijuana, cocaine,
and other drug substances, three firearms, drug paraphernalia, and the
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USPS package mailing label and printed receipt for the intercepted
package.
The inspectors extracted data from two of Mr. Sorensen’s cell
phones. The extraction reports and physical examinations showed
Mr. Sorensen had “Gayle” saved as a contact in two of the phones which
were displayed to the jury at trial. He saved Ms. Hartz’ address under
each of the “Gayle” contact listings, and misspelled “Luverne” as “Luvern”
just like the label on the intercepted package. The only other address in
each of the phones was the exact return address, including the same
misspelling of the City “Surprise” as “Suprise” as it also appeared on the
label of the intercepted package. The inspection of the phones also
confirmed the text messages between Ms. Hartz and Mr. Sorensen
regarding the intercepted package.
The inspectors also received proof Mr. Sorensen had called the ASK
USPS hotline to check the status of the intercepted package.
Additionally, the postal inspectors discovered USPS records showing
packages sent from Arizona to Ms. Hartz at addresses in Sioux Falls and
Luverne on at least six different occasions, and flight records revealing
that Mr. Sorensen took flights from Sioux Falls to Phoenix on dates
corresponding with delivery of many of the packages.
At the trial, Ms. Hartz provided extensive testimony about her
involvement with Mr. Sorensen. She testified that she met Mr. Sorensen
in the early 2000s when she and her boyfriend would consume
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methamphetamine with Mr. Sorensen and his wife. Ms. Hartz began to
work for Mr. Sorensen in 2014, after she lost her job. She accepted
packages for Mr. Sorensen in exchange for money and drugs. Ms. Hartz
testified she accepted approximately six packages containing
methamphetamine for Mr. Sorensen.
A USPS forensic latent print analyst testified about latent prints
found on the adhesive side of the packing tape on the intercepted
package. She identified three prints on the tape which matched
Mr. Sorensen’s known prints.
The jury convicted Mr. Sorensen on both counts of the superseding
indictment. See CR Docket No. 97. After the trial, but before sentencing,
Mr. Sorensen dismissed attorneys Ramstad, Rivers, and Grostyan. See
CR Docket Nos. 108-110. Mr. Sorensen retained his original attorney,
Clint Sargent, to represent him for sentencing. Id.
On April 25, 2017, the district court sentenced Mr. Sorensen to life
in prison for his drug distribution conspiracy conviction, which sentence
was mandatory because of the effect of the government’s having filed its
§ 851 information. See CR Docket No. 148. The court stated at
sentencing that, absent the § 851 information, it probably would not
have sentenced Mr. Sorenson to life imprisonment. See ST (CR Docket
No. 157), p. 28. Without the enhancement, the very bottom of
Mr. Sorensen’s guideline range would have been 360 months (30 years),
which the district court indicated it “probably would” have imposed. Id.
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On count 2 charging possession of a firearm by a prohibited person the
district court sentenced Mr. Sorensen to ten years’ imprisonment, to be
served concurrently with the sentence imposed on count 1. Id.
B. The Direct Appeal
Mr. Sorensen appealed the conviction and sentence. See CR
Docket No. 150. Attorney Clint Sargent filed the notice of appeal, but
Paul Engh, a Minneapolis lawyer, as well as Mr. Sorensen, acting pro se,
represented Mr. Sorensen throughout the appellate proceedings. See
United States v. Sorensen, 893 F.3d 1060 (8th Cir. 2018).
Mr. Sorensen raised the following issues on appeal: (1) whether the
district court erred by failing to sua sponte exclude the testimony of the
government’s fingerprint expert; (2) whether the two prior offenses cited
by the government’s information/amended information were proper
predicate “felony drug offenses” for imposition of an enhanced sentence
pursuant to 21 U.S.C. §§ 841(a)(1); 841(b)(1)(A) and 802(44); and (3)
whether the life sentence imposed by the district court violated the
Eighth Amendment prohibition on cruel and unusual punishment. See
Sorensen, 893 F.3d at 1060-67. The Eighth Circuit affirmed
Mr. Sorensen’s convictions and denied each of his claims on the merits.
Id.
C. Mr. Sorensen’s Allegations in his § 2255 Motion
Mr. Sorensen asserts six claims in support of his request for
§ 2255 relief:
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1. Mr. Sorensen’s statutory sentencing range was improperly
enhanced to mandatory life under 21 U.S.C. §§ 841(b)(1)(A)
and 851.
a. Arizona Conviction
b. South Dakota Conviction
2. Trial, sentencing, and appellate counsel were ineffective in
failing to challenge whether Mr. Sorensen’s South Dakota
and Arizona drug convictions qualified as “felony drug
offenses” in violation of Mr. Sorensen’s Sixth Amendment
Rights.
3. Trial counsel was ineffective in failing to investigate and
present at least two defense witnesses in violation of
Mr. Sorensen’s Sixth Amendment rights.
4. Trial counsel was ineffective in advising Mr. Sorensen to give
up his right to testify on his own behalf in violation of
Mr. Sorensen’s Sixth Amendment rights.
5. Mr. Sorensen’s life sentence for a drug offense violates his
rights under the:
a. Equal Protection Clause;
b. Eighth Amendment.
6. Mr. Sorensen’s conviction and sentence for being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1)
and 924(a)(2) were imposed in violation of the laws of the
United States in light of Rehaif v. United States, 139 S. Ct.
2191 (2019).
The government now moves to dismiss Mr. Sorensen’s § 2255
motion, arguing that the above issues were raised and decided on the
merits in Mr. Sorensen’s direct appeal or, if not raised, that they are now
procedurally defaulted and, as to his ineffective assistance claims, that
they fail on the merits.
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DISCUSSION
A. Scope and Procedure Applicable to a § 2255 Motion
Section 2255 of Title 28 of the United States Code was enacted to
supersede habeas corpus practice for federal prisoners. Davis v. United
States, 417 U.S. 333, 343-44 (1974). Section “2255 was intended to
afford federal prisoners a remedy identical in scope to federal habeas
corpus.” Id. at 343. Prior to the enactment of § 2255, habeas claims had
to be brought in the district where the prisoner was confined, resulting in
overburdening those districts where federal correctional institutions were
located and presented logistical issues because the record in the
underlying criminal case were often in a distant location. United States
v. Hayman, 342 U.S. 205, 212-16 (1952). The enactment of § 2255
resolved these issues by requiring that the motion be filed in the
sentencing court. Id.
The scope of a § 2255 motion is seemingly broader than the scope
of a habeas petition, the latter of which is typically limited to allegations
of a constitutional dimension. Section 2255 allows a federal prisoner to
“vacate, set aside or correct” a federal sentence on the ground that “the
sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized
by law, or is otherwise subject to collateral attack.” See 28 U.S.C. §
2255.
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Where the allegation for relief is not based on a violation of a
Constitutional or federal statutory right or an assertion that the court
was without jurisdiction, the Supreme Court has read a “fundamentality”
requirement into § 2255—relief is available for only those errors which
constitute a “fundamental defect which inherently results in a complete
miscarriage of justice” or “an omission inconsistent with the rudimentary
demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428
(1962); see Peguero v. United States, 526 U.S. 23, 27-30 (1999).
Generally, petitioners are precluded from asserting claims
pursuant to § 2255 that they failed to raise on direct appeal. United
States v. Frady, 456 U.S. 152, 167-68 (1982); McNeal v. United States,
249 F.3d 747, 749 (8th Cir. 2001). When a § 2255 petitioner asserts a
claim that is procedurally defaulted because it was not raised on direct
appeal, the claim can only proceed after the petitioner has shown either:
(1) actual innocence or (2) that the procedural default should be excused
because there was both cause for the default and actual prejudice to the
petitioner. Bousley v. United States, 523 U.S. 614, 621-22 (1998);
McNeal, 249 F.3d at 749. Therefore, barring a claim of actual innocence,
a petitioner must show both cause for why he failed to raise an issue on
direct appeal as well as actual prejudice caused by the alleged errors.
Appellate courts generally refuse to review claims of ineffective
assistance of counsel on direct appeal; such claims are, therefore,
properly addressed in a 28 U.S.C. § 2255 motion such as the one here.
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See United States v. Campbell, 764 F.3d 880, 892-93 (8th Cir. 2014);
United States v. Lee, 374 F.3d 637, 654 (8th Cir. 2004) (ineffective
assistance of counsel claims are not generally cognizable on direct appeal
and will be heard only to prevent a miscarriage of justice or in cases
where the district court has developed a record on the issue). Therefore,
no procedural default analysis applies to petitioner’s claim of
constitutionally deficient counsel.
B. Standard Applicable to Rule 12(b)(6) Motions
The government’s motion to dismiss Mr. Sorensen’s § 2255 motion
is based on Federal Rule of Civil Procedure 12, specifically parts (b)(6)
and (h)(3) of Rule 12. See Docket No. 26. The Federal Rules of Civil
Procedure are applicable to § 2255 habeas actions so long as the
procedural rules do not conflict with the habeas statutes or the Rules
Governing Section 2255 Cases in the United States District Courts
(“Governing Rules”). See Governing Rule 12. Federal Rule of Civil
Procedure 12(b)(6) is not inconsistent with the Governing Rules.
Compare Governing Rules 4 & 5 (allowing respondent to respond to
petitioner’s habeas petition with a motion), with FED. R. CIV. P. 12(b)(6)
(same); see also Ebert v. Clarke, 320 F. Supp. 2d 902, 909-10 (D. Neb.
2004) (holding that FED. R. CIV. P. 12(b)(6) applies in habeas
proceedings).
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The government invokes Rule 12(h)(3), which allows dismissal for
lack of subject matter jurisdiction, but never supports its invocation with
any evidence or argument that this court lacks jurisdiction. Indeed,
Mr. Sorensen seeks to attack the constitutionality of his conviction and
this is the district in which he was sentenced. If this court does not have
subject matter jurisdiction over Mr. Sorensen’s claim, what court does?
Merely because the government believes Mr. Sorensen is not entitled to
habeas relief on the claims he has asserted does not act to deprive this
court of the power to hear and decide his claims. The court rejects
outright the government’s citation to Rule 12(h)(3).
As to Rule 12(b)(6), that provision allows dismissal of a habeas
petition if the petitioner has failed to state a claim upon which relief can
be granted. See FED. R. CIV. P. 12(b)(6). Petitioners must plead “enough
facts to state a claim to relief that is plausible on its face.” Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007) (emphasis added).
Under Federal Rule of Civil Procedure 8(a)(2), a petitioner must
plead only “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Id. at 555 (quoting FED. R. CIV. P. 8(a)(2)). A
habeas petition does not need “detailed factual allegations” to survive a
motion to dismiss, but a petitioner must provide the grounds for his
entitlement to relief and cannot merely recite the elements of his cause of
action. Id. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
There is also a “plausibility standard” which “requires a [petition] with
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enough factual matter (taken as true)” to support the conclusion that the
petitioner has a valid claim. Id. at 556. The petitioner’s complaint must
contain sufficiently specific factual allegations in order to cross the line
between “possibility” and “plausibility” of entitlement to relief. Id.
There are two “working principles” that apply to Rule 12(b)(6)
motions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). First, courts are
not required to accept as true legal conclusions “couched as factual
allegation[s]” contained in a petition. Id. (quoting Twombly, 550 U.S. at
555). “Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id. (citing
Twombly, 550 U.S. at 555). Rule 8 “does not unlock the doors of
discovery for a [petitioner] armed with nothing more than conclusions.”
Id. at 678-79.
Second, the plausibility standard is a “context-specific task that
requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679 (citing decision below Iqbal v. Hasty, 490
F.3d 143, 157-158 (2d Cir. 2007)). Where the petitioner’s allegations are
merely conclusory, the court may not infer more than the mere
possibility of misconduct, and the petitioner has alleged—but has not
“show[n]”—that he is entitled to relief as required by Rule 8(a)(2). Iqbal,
556 U.S. at 679 (emphasis added).
The Court explained that a reviewing court should begin by
identifying statements in the petition that are conclusory and therefore
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not entitled to the presumption of truth. Id. at 679-80. Legal
conclusions must be supported by factual allegations demonstrating the
grounds for a petitioner’s entitlement to relief. Id. at 679; Twombly, 550
U.S. at 555; FED. R. CIV. P. 8(a)(2). A court should assume the truth only
of “well-pleaded factual allegations,” and then may proceed to determine
whether the allegations “plausibly give rise to an entitlement to relief.”
Iqbal, 556 U.S. at 679. These are the principles guiding the court’s
evaluation of respondent’s motion.
Rule 12(b)(6) requires the court to evaluate the sufficiency of a
petitioner’s pleading of a claim by examining his or her petition. See
FED. R. CIV. P. 12(b)(6); Iqbal, 556 U.S. at 679. Courts evaluating a Rule
12(b)(6) motion are not strictly limited to evaluating the petition alone,
however. Dittmer Properties, L.P. v. F.D.I.C., 708 F.3d 1011, 1021 (8th
Cir. 2013). They may consider “matters incorporated by reference or
integral to the claim, items subject to judicial notice, matters of public
record, orders, items appearing in the record of the case, and exhibits
attached to the complaint whose authenticity is unquestioned.” Id.
(quoting Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3
(8th Cir. 2012) (quoting 5B CHARLES A. WRIGHT & ARTHUR R. MILLER, FED.
PRACTICE & PROCEDURE § 1357 (3d ed. 2004))).
When a respondent files a response to a § 2255 action, whether it
be an answer or a motion to dismiss, the respondent is directed to attach
any transcripts or other records the respondent considers to be relevant
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and which are not available in the court’s records. See Governing Rule
5(c). In addition, Rule 4 specifically directs the court to examine the
record of prior proceedings in that court. See Governing Rule 4(b). The
government has also supplied the court with affidavits from Sorensen’s
former trial counsel addressing some of Mr. Sorensen’s allegations of
ineffective assistance claims. See Docket Nos. 23 and 24.
In addition, the court considers the entire record in Mr. Sorensen’s
underlying criminal case. Because these documents are required by
Governing Rule 5(c), and because these documents are of the type which
the court would be allowed to judicially notice, the court considers these
documents in ruling on respondents’ Rule 12(b)(6) motion. Dittmer
Properties, L.P., 708 F.3d at 1021; FED. R. EVID. 201(b); Governing Rule
5(c).
C. Whether Mr. Sorensen’s Sentencing Range Was Improperly
Enhanced to Mandatory Life under 21 U.S.C. §§ 841(b)(1)(A)
and 851.
Mr. Sorensen asserts his sentence was improperly enhanced by
both his Arizona conviction and his South Dakota conviction. He asserts
that neither prior conviction constitute a proper predicate offense under
21 U.S.C. §§ 841(b)(1)(A) and 802(44).
1. Arizona Conviction
On direct appeal, Mr. Sorensen challenged the validity of the
Arizona conviction as a predicate offense. Sorensen, 893 F.3d at
1066-67. The basis of Mr. Sorensen’s challenge to the Arizona conviction
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on direct appeal was the sufficiency of the information the government
filed pursuant to 21 U.S.C. § 851(a), and whether the government had
complied with the notice requirements of that statute. Id.
The court found the government filed the amended information
after conviction, but before sentencing. Id. The initial information
erroneously listed the Arizona conviction as one of transporting or selling
when in fact it was for possession. Id. at 1067. But the initial
information correctly identified the state and county of conviction, and
the exact date of the conviction. Id. Thus, the court found, the initial
information filed by the government gave reasonable notice of the
government’s intent to rely on that particular conviction. Id.
The second information, filed after conviction but before
sentencing, corrected the error of “transporting or selling” to “possession”
for the Arizona conviction. Id. Though 21 U.S.C. § 851(a) states clerical
errors may be amended any time before pronouncement of the sentence,
the statute does not define the meaning of the term “clerical errors.” The
court, however, explained that an amendment merely corrects a clerical
error “where the government’s initial information still gave the defendant
reasonable notice of the government’s intent to rely on a particular
conviction.” Id. at 1066-67 (cleaned up). Because the government’s
initial information did so in this case, the court found the Arizona
conviction was properly used to enhance Mr. Sorensen’s sentence. Id. at
1067.
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In this § 2255 proceeding, Mr. Sorensen again claims his Arizona
conviction was improperly used to enhance his sentence. To the extent
he makes the same general claim that his Arizona conviction was
improperly used to enhance his conviction, that general claim is barred
because it was already made and rejected on direct appeal. Sun Bear v.
United States, 644 F.3d 700, 702 (8th Cir. 2011).
In this § 2255 proceeding, however, Mr. Sorensen also makes a
new argument about why the Arizona conviction was improperly used to
enhance his sentence. Mr. Sorensen asserts that because the Arizona
conviction arose under a state statute that is overbroad and indivisible,
the 2008 Arizona conviction does not qualify as a “felony drug offense.”
See Docket No. 2, p. 3. Because this new argument was not made on
direct appeal, it is procedurally defaulted unless Mr. Sorensen shows (1)
cause for the default and prejudice as a result of the issue not being
raised or (2) a fundamental miscarriage of justice. Bousley, 523 U.S. at
622. The “cause” Mr. Sorensen alleges is that his trial, sentencing, and
appellate counsel were ineffective for failing to raise this argument.
If Mr. Sorenson can show his counsel were ineffective, this would
constitute a sufficient showing of the “cause” prong of cause and
prejudice. Becht v. United States, 403 F.3d 541, 545 (8th Cir. 2005);
Boysiewick v. Schriro, 179 F.3d 616, 619 (8th Cir. 1999). Prejudice
would be inherent in the increase of Mr. Sorenson’s sentence to
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mandatory life imprisonment. For this reason, the court examines the
merits of Mr. Sorensen’s claim as to the Arizona conviction.
a. Mathis v. United States
In Mathis v. United States, Mathis’ sentence for unlawful
possession of a firearm was enhanced under the Armed Career Criminal
Act (ACCA) because he had three prior convictions for a violent felony,
including an Iowa conviction for “burglary.” Mathis, 136 S. Ct. at
2246-47. Settled law established that a prior state court conviction for
burglary qualified as a burglary under the ACCA for purposes of
enhancing a federal defendant’s sentence “if, but only if, its elements are
the same as, or narrower than, those of the generic offense” of burglary.
Id. at 2247. Settled law also established that generic burglary meant a
crime containing “the following elements: an unlawful or unprivileged
entry into . . . a building or other structure, with intent to commit a
crime.” Id. at 2248.
The Court explained that, to determine whether a prior conviction
for burglary fits the definition of generic burglary under the ACCA,
“courts apply . . . the categorical approach: They focus solely on whether
the elements of the crime of conviction sufficiently match the elements of
generic burglary, while ignoring the particular facts of the case.” Id.
Distinguishing between elements of an offense and facts is central to the
determination. Id.
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“Elements are the constituent parts of a crime’s legal definition—
the things the prosecution must prove to sustain a conviction.” Id.
(cleaned up). Elements must be proven beyond a reasonable doubt and
found by a jury in order to convict the defendant. Id. At a plea hearing,
the defendant must admit each element in order for the plea to be valid.
Id.
Facts, sometimes called “brute facts,” by contrast, are
“circumstances or events having no legal effect or consequence.” Id.
(cleaned up). They do not have to be “found by a jury nor admitted by a
defendant.” Id. Another term used to describe facts are “means,” or
“mere means.”
Under the categorical approach, if the crime of conviction has
elements that are the same as or narrower than the generic offense, it
counts as a valid “crime of violence” under the ACCA. Id. But if the
elements of the crime of conviction include conduct broader than the
generic offense, it is not a qualifying prior conviction for purposes of
sentence enhancement under the ACCA. Id. Under the categorical
approach, courts are limited to comparing the elements of the offense of
conviction—without regard to the facts or means of the crime—with the
elements of the generic offense, in Mathis’ case, burglary. Id. Thus, if
the elements of the conviction are broader than the elements of generic
burglary, the conviction cannot constitute a “crime of violence” under the
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ACCA, even if the actual facts of the defendant’s crime of conviction
would fit within the definition of generic burglary. Id. at 2248-49.
The Court noted it had allowed a modified categorical approach
allowing the sentencing court to look to a limited list of sources relevant
to the crime of conviction if a statute had a “divisible structure.” Id. at
2249. A statute with a divisible structure is one that “list[s] elements in
the alternative, and thereby define[s] multiple crimes.” Id. Under these
circumstances, the sentencing court may look to the indictment, jury
instructions or the plea to determine which of the alternative substantive
crimes the defendant was actually convicted of. Id. But the modified
categorical approach is only applicable where a statute contains an
alternative list of elements. It cannot be applied to a statute that lists
alternative means.
In Mathis’ case, he had a prior Iowa conviction for burglary which
covered conduct broader than that covered by generic burglary—in
addition to criminalizing unlawful entry into a building or other structure
like generic burglary, the Iowa statute also made it a crime to enter
“vehicle[s],” which was a location not covered by generic burglary. Id. at
2250. The Court, with reference to Iowa state court opinions, held that
the statute defined one crime, with one set of elements, while specifying
multiple factual means of satisfying the locational element, only some of
which were congruent with the elements of generic burglary. Id.
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The district court had looked to Mathis’ underlying conviction
documents and determined he had actually burgled a structure. Id. The
court then applied the ACCA enhancement based on looking behind the
elements of the state offense and examining state court documents that
described Mathis’ actual actions. Id. The Eighth Circuit affirmed,
holding that whether a statute delineated alternative means of
committing a crime, or alternative elements, either circumstance would
permit the sentencing court to “look behind” the statute itself and
examine old record materials to determine what conduct the defendant
had actually engaged in that was the basis of his conviction. Id. The
Supreme Court reversed. Id. at 2253.
The Court stated it had “often held, and in no uncertain terms,
that a state crime cannot qualify as an ACCA predicate if its elements are
broader than those of a listed generic offense.” Id. at 2251. How a
defendant actually committed the crime is not relevant. Id. That rule,
the Court emphasized, applies whether the statute set forth a single
means of committing the crime, or several alternative possible means of
commission. Id. The state legislature’s prerogative to list alternative
means in a single statute “gives a sentencing court no special warrant to
explore the facts of an offense, rather than to determine the crime’s
elements and compare them with the generic definition.” Id.
The Court held that the modified categorical approach serves
“solely” to “identify the elements of the crime of conviction when a
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statute’s disjunctive phrasing renders one (or more) of [the elements]
opaque.” Id. at 2253. Lower courts are not allowed to repurpose the
modified categorical approach to discover whether the facts of a
defendant’s prior conviction would match the generic definition under
the ACCA. Id. at 2254.
The Mathis Court’s exasperation with lower courts improperly
trying to evade applying the categorical approach’s comparison of
elements only is palpable in the opinion. The Court stated its holding
had been the law for more than a quarter of a century. Id. at 2251
(citing Taylor v. United States, 495 U.S. 575, 601 (1990)). The Court
stated Taylor’s holding “became a mantra in our subsequent” decisions.
Id. The Court stated it had “held, over and over” that courts are to
compare elements only and disregard specific facts of a crime. Id. at
2257. “At the risk of repetition (perhaps downright tedium),” the court
laid out examples from its recent opinions:
--the ACCA “refers to predicate offenses in terms not of prior
conduct but of prior ‘convictions’ and the ‘element[s]’ of
crimes.” Shepard v. United States, 544 U.S. 13, 19 (2005).
--“[W]e have avoided any inquiry into the underlying facts of
[the defendant’s] particular offense, and have looked solely to
the elements of [burglary] as defined by [state] law.” James
v. United States, 550 U.S. 192, 214 (2007).
--“[W]e consider [only] the elements of the offense [,] without
inquiring into the specific conduct of this particular
offender.” Sykes v. United States, 564 U.S. 1, 7 (2011).
--“The key [under ACCA] is elements, not facts.” Descamps
v. United States, 570 U.S. 254, 261 (2013).
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Mathis, 136 S. Ct. at 2251-52.
Further, the Mathis Court emphasized it has hewed to the same
precedent in cases outside the ACCA, such as in immigration cases,
where it has stated a sentencing judge must look at the “formal
element[s] of a conviction[,] rather than to the specific facts underlying
the crime,” in deciding whether to deport an alien for having a prior
conviction for an “aggravated felony.” Id. at 2251-52 n.2 (quoting
Kawashima v. Holder, 565 U.S. 478, 482-83 (2012)).
The Court articulated three reasons in support of its precedent. Id.
at 2252. First, Congress intended application of the categorical
approach by using the language “previous convictions” instead of “an
offense committed.” Id. This legislative choice of words, the Court held,
indicated sentencing courts should only ask whether “the defendant had
been convicted of crimes falling within certain categories,” and not ask
about the specific facts behind a conviction. Id.
Second, the Court in Apprendi v. New Jersey, 530 U.S. 466, 490
(2000), held that the Sixth Amendment forbids sentencing courts from
finding facts that served to increase a defendant’s punishment, except for
finding “the simple fact of a prior conviction.” Id. That means a
sentencing court may only look to the elements of the statute of
conviction, it cannot scour through the defendant’s underlying state file
trying to “find facts” which would place the defendant within the ACCA’s
definition of generic burglary and thereby increase his punishment. Id.
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Third, statements of facts in an underlying record, the proof of
which are unnecessary to the establishment that a crime has been
committed, are unreliable. Id. at 2253. Because the facts are not
required for conviction, at a trial and, even more, at a plea hearing, a
defendant may have zero incentive to contest facts which do not affect
the outcome of his case, and he may even be precluded from doing so by
the court.3 Id. at 2253. Furthermore, a prosecutor or judge’s inaccurate
statement of means (as opposed to elements) are likely to go uncorrected.
Id. Parties have little incentive to pursue an appeal issue that will not
affect the outcome of the case. Id.
The Court concluded by stating that Congress’ use of the term
“convictions” in the ACCA still supports an elements-based inquiry and
“directly refutes” a fact-based approach. Id. The Court stated its
decision in Descamps “made clear that when the Court had earlier said
(and said and said) ‘elements,’ it meant just that”; it did not mean
“means.” Id. at 2255.
It is the Mathis decision and its progeny that the court must apply
to Mr. Sorenson’s claim.
3 Remember, the Mathis Court was construing a statute which listed
alternative means of committing the crime of burglary, not alternative
elements. The whole question was whether the modified categorical
approach could be applied when the alternatively listed things were
means, not elements. Mathis, 136 S. Ct. at 2253.
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b. Cause—Ineffective Assistance
The government urges the court not to reach the merits of
Mr. Sorenson’s argument as to his Arizona conviction because the
argument was “novel” and, therefore, cannot constitute ineffective
assistance of counsel.
The Sixth Amendment of the Constitution of the United States
affords a criminal defendant with the right to assistance of counsel. U.S.
Const. amend. VI. The Supreme Court “has recognized that ‘the right to
counsel is the right to the effective assistance of counsel.’ ” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (quoting McMann v. Richardson,
397 U.S. 759, 771, n.14 (1970)). Strickland is the benchmark case for
determining if counsel’s assistance was so defective as to violate a
criminal defendant’s Sixth Amendment rights and require reversal of a
conviction. Id. at 687. “When a convicted defendant complains of the
ineffectiveness of counsel’s assistance, the defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.” Id. at 687-88. The defendant must also show that
counsel’s unreasonable errors or deficiencies prejudiced the defense and
affected the judgment. Id. at 691. The defendant must show that “there
is a reasonable probability that, absent the errors, the factfinder would
have had a reasonable doubt respecting guilt.” Id. at 695. In sum, a
defendant must satisfy the following two-prong test. Id. at 687.
First, the defendant must show that counsel’s performance
was deficient. This requires showing that counsel made
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errors so serious that counsel was not functioning as the
“counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the
deficient performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.
Unless a defendant makes both showings, it cannot be said
that the conviction or death sentence resulted from a
breakdown in the adversary process that renders the result
unreliable.
Id.
“There is a presumption that any challenged action was sound trial
strategy and that counsel rendered adequate assistance and made all
significant decisions in the exercise of professional judgment.” Hall v.
Luebbers, 296 F.3d 685, 692 (8th Cir. 2002). It is the petitioner’s
burden to overcome this presumption, and a “petitioner cannot build a
showing of prejudice on a series of errors, none of which would by itself
meet the prejudice test.” Id.
Counsel’s conduct must be judged by the standards for legal
representation which existed at the time of the representation, not by
standards promulgated after the representation. Bobby v. Van Hook,
558 U.S. 4, 7-9 (2009). American Bar Association standards and similar
directives to lawyers are only guides as to what reasonableness of
counsel’s conduct is, they are not its definitive definition. Id. The
Supreme Court distinguishes between those cases in which the new
evidence “would barely have altered the sentencing profile presented to
the sentencing judge,” and those that would have had a reasonable
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probability of changing the result. Porter v. McCollum, 558 U.S. 30, 41
(2009).
In assessing the prejudice prong, it is important for courts to
consider “ ‘the totality of the available mitigation evidence—both that
adduced at trial, and the evidence adduced in the habeas proceeding’—
and ‘reweig[h] it against the evidence in aggravation.’ ” Id. at 41 (quoting
Williams v. Taylor, 529 U.S. 362, 397-98 (2000)). It is not necessary for
the petitioner to show “that counsel’s deficient conduct more likely than
not altered the outcome” of his case, only that there is “a probability
sufficient to undermine confidence in [that] outcome.” Id. at 44. Judicial
scrutiny of attorney performance is highly deferential, with a strong
presumption that counsel’s conduct falls within the range of reasonable
professional conduct. Strickland, 466 U.S. at 698.
A counsel’s failure to raise a novel argument or an issue of
unsettled law does not render his performance constitutionally
ineffective. Basham v. United States, 811 F.3d 1026, 1029 (8th Cir.
2016); New v. United States, 652 F.3d 949, 952 (8th Cir. 2011);
Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005). Even
where an issue is percolating in the lower courts, or where a split of
authority exists among the courts, counsel’s performance “falls within
the wide range of professionally competent assistance” if such an issue is
not raised. Basham, 811 F.3d at 1029; Fields v. United States, 201 F.3d
1025, 1027-28 (8th Cir. 2000).
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Here, the court concludes the issue of whether Mr. Sorenson’s
previous conviction in Arizona could be used to enhance his federal drug
sentence was not a novel or new issue. As the Supreme Court pointed
out in Mathis, the rule “announced” in Mathis had been the law for 25
years, since the Court decided Taylor. Furthermore, the issue did not lie
latent for 25 years; it was affirmed again and again by the Supreme
Court. Furthermore, the Mathis decision itself was decided three months
before the government filed its § 851 information in Mr. Sorenson’s case.
Mathis was the law of the land 10 months before Mr. Sorenson’s
sentencing.
Counsel, both trial and appellate, had ample time to take note of
the Mathis decision and apply it to Mr. Sorenson’s case. The government
obtained and filed affidavits from two of Mr. Sorenson’s lawyers, Bruce
Michael Rivers and Coley Grostyan. See Docket Nos. 23 & 24. Neither of
these affidavits address the Mathis issue. Counsel do not discuss in
these affidavits whether they considered attacking the convictions listed
in the § 851 information. The government did not obtain affidavits from
Mr. Sorenson’s local counsel, Rick Ramstad or Clint Sargent, who
handled Mr. Sorenson’s sentencing hearing. No affidavit appears in the
record from Mr. Sorenson’s appellate counsel, Paul Engh, addressing
whether the Mathis issue was considered on appeal.
At this procedural posture of Mr. Sorenson’s case, the court does
not definitively decide whether he merits habeas relief. The court decides
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only whether there is no plausible scenario given the facts pleaded that
Mr. Sorenson can obtain relief. The court concludes there is plausible
evidence of ineffective assistance of counsel and, for purposes of the
government’s Rule 12(b)(6) motion, the court finds Mr. Sorenson has met
his burden to show cause and allow his case to progress. Evidence
should be received at a hearing to further flesh out this issue, including
evidence from lawyers who represented Mr. Sorenson at sentencing and
on appeal.
c. The Merits of the Arizona Conviction
If the law precludes relief altogether in Mr. Sorenson’s case, then
the court would be required to grant the government’s Rule 12(b)(6)
motion regardless of what trial counsel and appellate counsel’s testimony
would be. Accordingly, the court examines the merits of Mr. Sorenson’s
claim.
A “felony drug offense” pursuant to 21 U.S.C. §§ 841(b)(1)(A) and
802(44) is a conviction that “is punishable by imprisonment for more
than one year under any law of the United States or of a state or foreign
country that prohibits or restricts conduct relating to narcotic drugs,
marihuana, anabolic steroids, or depressant or stimulant substances.”
Id. 21 U.S.C. § 802(44).
In Mr. Sorensen’s 2008 Arizona conviction, Mr. Sorensen pleaded
guilty to possession of dangerous drugs (methamphetamine), a class 4
felony, in violation of ARS §§ 13-3407, 13-3401, 13-701, and 13-801.
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See Docket No. 2-1. He received a stipulated three-year prison sentence
for this conviction. Id. The relevant portions of those statutes as they
were in January, 2008, at the time of Mr. Sorensen’s Arizona conviction,
are:4
ARS 13-3407 Possession, use, administration, acquisition,
sale, manufacture, or transportation of dangerous drugs;
classification
A. A person shall not knowingly:
1. Possess or use a dangerous drug.
2. Possess a dangerous drug for sale.
3. Possess equipment or chemicals, or both, for the
purpose of manufacturing a dangerous drug.
4. Manufacture a dangerous drug.
5. Administer a dangerous drug to another person.
6. Obtain or procure the administration of a
dangerous drug by fraud, deceit,
misrepresentation or subterfuge.
7. Transport for sale, import into this state or offer to
transport for sale or import into this state, sell,
transfer or offer to sell or transfer a dangerous
drug.
B. A person who violates:
1. Subsection A, paragraph 1 of this section is guilty
of a class 4 felony. Unless the drug involved is
lysergic acid diethylamide, methamphetamine,
amphetamine or phencyclidine or the person was
4 ARS 13-3401 is the “definitions” portion of the statute of conviction. It
is very lengthy and the parties do not contest that methamphetamine is
contained within the definition of a “dangerous drug.” The court
therefore does not reproduce this statute.
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previously convicted of a felony offense or a
violation of this section or § 13-3408 , the court on
motion of the state, considering the nature and
circumstances of the offense, for a person not
previously convicted of any felony offense or a
violation of this section or § 13-3408 may enter
judgment of conviction for a class 1 misdemeanor
and make disposition accordingly or may place the
defendant on probation in accordance with chapter
9 of this title 1 and refrain from designating the
offense as a felony or misdemeanor until the
probation is successfully terminated. The offense
shall be treated as a felony for all purposes until
the court enters an order designating the offense a
misdemeanor.
2. Subsection A, paragraph 2 of this section is guilty
of a class 2 felony.
3. Subsection A, paragraph 3 of this section is guilty
of a class 3 felony, except that if the offense
involved methamphetamine, the person is guilty of
a class 2 felony.
4. Subsection A, paragraph 4 of this section is guilty
of a class 2 felony.
5. Subsection A, paragraph 5 of this section is guilty
of a class 2 felony.
6. Subsection A, paragraph 6 of this section is guilty
of a class 3 felony.
7. Subsection A, paragraph 7 of this section is guilty
of a class 2 felony.
C. Except as provided in subsection E of this section, a
person who is convicted of a violation of subsection A,
paragraph 1, 3 or 6 and who has not previously been
convicted of any felony or who has not been sentenced
pursuant to § 13-604 or any other law making them a
convicted person ineligible for probation is eligible for
probation.
D. Except as provided in subsection E of this section, if
the aggregate amount of dangerous drugs involved in
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one offense or all of the offenses that are consolidated
for trial equals or exceeds the statutory threshold
amount, a person who is convicted of a violation of
subsection A, paragraph 2, 5 or 7 of this section is not
eligible for suspension of sentence, probation, pardon
or release from confinement on any basis until the
person has served the sentence imposed by the court,
the person is eligible for release pursuant to § 41-
1604.07 or the sentence is commuted.
E. If the person is convicted of a violation of subsection A,
paragraph 4 of this section or subsection A,
paragraph 2, 3, or 7 of this section and the drug
involved is methamphetamine, the person shall be
sentenced pursuant to § 13-712.
F. A person who is convicted of a violation of subsection
A, paragraph 4 of this section or subsection A,
paragraph 2, 3 or 7 of this section involving
methamphetamine is not eligible for suspension of
sentence, probation, pardon or release from
confinement on any basis until the person has served
the sentence imposed by the court, the person is
eligible for release pursuant to § 41-1604.07 or the
sentence is commuted.
G. If a person is convicted of a violation of subsection A,
paragraph 5 of this section, if the drug is administered
without the other person's consent, if the other person
is under eighteen years of age and if the drug is
flunitrazepam, gamma hydroxy butrate or ketamine
hydrochloride, the convicted person is not eligible for
suspension of sentence, probation, pardon or release
from confinement on any basis until the person has
served the sentence imposed by the court, the person is
eligible for release pursuant to § 41-1604.07 or the
sentence is commuted.
H. In addition to any other penalty prescribed by this title,
the court shall order a person who is convicted of a
violation of this section to pay a fine of not less than
one thousand dollars or three times the value as
determined by the court of the dangerous drugs
involved in or giving rise to the charge, whichever is
greater, and not more than the maximum authorized
by chapter 8 of this title. A judge shall not suspend
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any part or all of the imposition of any fine required by
this subsection.
I. A person who is convicted of a violation of this section
for which probation or release before the expiration of
the sentence imposed by the court is authorized is
prohibited from using any marijuana, dangerous drug,
narcotic drug or prescription-only drug except as
lawfully administered by a health care practitioner and
as a condition of any probation or release shall be
required to submit to drug testing administered under
the supervision of the probation department of the
county or the state department of corrections, as
appropriate, during the duration of the term of
probation or before the expiration of the sentence
imposed.
J. If a person who is convicted of a violation of this section
is granted probation, the court shall order that as a
condition of probation the person perform not less than
three hundred sixty hours of community restitution
with an agency or organization that provides
counseling, rehabilitation or treatment for alcohol or
drug abuse, an agency or organization that provides
medical treatment to persons who abuse controlled
substances, an agency or organization that serves
persons who are victims of crime or any other
appropriate agency or organization.
ARS 13-701 Sentence of Imprisonment for felony;
presentence report.
A. Sentence of imprisonment for a felony shall be a
definite term of years and the person sentenced, unless
otherwise provided by law, shall be committed to the
custody of the state department of corrections.
B. No prisoner may be transferred to the custody of the
state department of corrections without a certified copy
of the judgment and sentence, signed by the sentencing
judge, and a copy of the recent presentence
investigation report unless the court has waived
preparation of the report.
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C. Except as provided in § 13-604 the term of
imprisonment for a felony shall be determined as
follows for a first time offense:
1. For a class 2 felony, five years.
2. For a class 3 felony, three and one-half years.
3. For a class 4 felony, two and one-half years.
4. For a class 5 felony, one and one-half years.
5. For a class 6 felony, one year.
ARS 134-801 Fines for Felonies
A. A sentence to pay a fine for a felony shall be a sentence
to pay an amount fixed by the court not more than one
hundred fifty thousand dollars.
B. A judgment that the defendant shall pay fine, with or
without the alternative of imprisonment, shall
constitute a lien in like manner as a judgment for
money rendered in a civil action.
C. This section does not apply to an enterprise.
Mathis teaches that the first task a court must engage in is to
determine whether a state statute of conviction containing alternatively
phrased items lists separate elements of a crime, or merely lists different
means of committing a crime. Mathis, 136 S. Ct. at 2256. If the statute
lists alternative means of committing the crime, the court must apply the
categorical approach and look to the elements of the state crime and
compare them with the federal crime. In the context of a § 851
information, the appropriate comparison is whether the state statute
criminalizes possession, distribution, or ingestion of drugs more broadly
than the federal drug statutes do.
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Mr. Sorensen asserts, and the government does not dispute, there
are at least two drugs listed in Arizona’s schedule of “dangerous drugs”
that are not listed in the drugs defined by the federal schedule of drugs
covered by 21 U.S.C. § 802(44) as qualifying for the enhancement
mandated by § 841(b)(1)(A). Those drugs, according to Mr. Sorensen, are
propylhexedrine and scopolamine. Therefore, Mr. Sorensen says, the
Arizona law is broader than § 802(44) and a conviction under that
statute cannot serve as a predicate offense. This is true if the various
schedules of drugs listed by Arizona are only alternative “means” of
committing the crime of possession of a “dangerous drug.” The
government argues that each separate drug listed in Arizona’s statute
constitutes a separate element, thus allowing this court to apply the
modified categorical approach to determine what the specific facts of
Mr. Sorenson’s conviction were.
No one disputes Mr. Sorenson was actually convicted of possession
of methamphetamine in Arizona. No one disputes that the federal drug
laws make it a felony to possess methamphetamine. Thus, whether the
separate drugs criminalized under Arizona law are elements or means is
determinative in this case because the answer to that question
determines whether the sentencing court can only compare elements of
the state crime and the federal crime, or whether the court can “look
behind” the conviction to examine facts.
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The Mathis Court again provides guidance. In determining
whether the various drugs listed in Arizona’s statute are elements or
means, courts should first look to Arizona state law to see if state law
definitively answers the question. Mathis, 136 S. Ct. at 2256.
In Arizona v. Castorina, No. 1 CA-CR 08-0816, 2010 WL 2450117,
at *3-4 (Ariz. Ct. App. June 17, 2010), an intermediate appellate court in
Arizona was presented with an argument by a defendant that the state
was required to prove at his trial, and did not do so, which of several
bottles of pills he was found in possession of was a “dangerous drug”
under Arizona’s drug laws. The court affirmed the defendant’s
conviction, stating the state was required to prove defendant possessed a
dangerous drug and that he knew the drug he possessed was a
dangerous drug, but the state did not have to prove which of the many
drugs on Arizona’s drug schedule the defendant knew he possessed. Id.
at *4.
Mr. Sorenson argues this opinion shows that the various drugs on
Arizona’s drug schedule are merely alternative means of committing the
singular crime of possession of a “dangerous drug.” The seemingly broad
holding of Castorina is undercut by the factual record in the case, which
revealed the jury actually found the defendant to have possessed several
discrete, named drugs. Id. at *6-7.
Mr. Sorenson also cites Arizona v. Cheramie, 189 P.3d 374, 376
(Ariz. 2008), which held that the elements of proof for possession of a
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dangerous drug under ARS § 13-3407(A)(1) are (1) possession (2) of a
“dangerous drug.” The statute involved in Cheramie is the same statute
and subdivision under which Mr. Sorenson was convicted. However, the
Cheramie court did not address whether individual drugs in its drug
schedules are elements or means.
Mr. Sorensen also argues that because there is a separate portion
of the Arizona code altogether (ARS § 13-3401) that enumerates the
possible substances that fit the definition of “dangerous drug” within
ARS § 13-3407, then those “dangerous drugs” are “means” not
“elements.” See Docket No. 35, p. 7 (citing ARS § 13-3401(6) and United
States v. Headbird, 832 F.3d 844, 849 (8th Cir. 2016) (fact that definition
of a statutory phrase is contained in a separate section of the code
provides textual support for the conclusion that the phrase is intended
as an element of the crime, and the list in the definition section contains
means by which that element may be committed)). See also United
States v. McFee, 842 F.3d 572, 575 (8th Cir. 2016) (holding that a
statute which defined various ways of committing a crime in a separate
statute contained alternative means, not elements, therefore requiring
application of the categorical approach).
The government, for its part, points out that under Arizona’s drug
laws, ARS § 13-3407(B)(1), the crime of possession of methamphetamine
is excluded from those “dangerous drug” crimes which are eligible for a
misdemeanor conviction. Since different penalties apply, the government
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argues that this shows the Arizona statute lists alternative elements, not
means, and thus allows the court to apply the modified categorical
approach. Docket No. 41, p. 6 (citing Mathis, 136 S. Ct. at 2256).
The government also argues that the fact that Arizona law
criminalizes the possession of “a” dangerous drug instead of “any”
dangerous drug shows that the discrete dangerous drugs listed by
separate statute are elements, not means, and therefore allow the court
to apply the modified categorical approach. It is true that the Eighth
Circuit relied on the distinction between a statute’s use of the word “a”
instead of “any” to apply the modified categorical approach in Martinez v.
Sessions, 893 F.3d 1067, 1071 (8th Cir. 2018). However, the reliance
was on Missouri court opinions that drew the “a”-vs-“any” distinction. Id.
The Seventh Circuit has examined the exact Arizona statute
Mr. Sorenson was convicted of as listed in his § 851 information, albeit a
different subdivision of that statute (ARS § 13-3407(A)(3)), and held that
the categorical approach must be applied and that the Arizona drug
conviction cannot be considered a felony drug conviction for purposes of
§ 851 because its elements are broader than the elements under federal
drug laws. See United States v. Elder, 900 F.3d 491, 497-502 (7th Cir.
2018). Moreover, the Seventh Circuit rejected the government’s
argument in that case that the modified categorical approach could be
applied because each individual drug under Arizona’s drug schedule was
an alternative “element” to be proved, thus justifying a sentencing court
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in looking behind the conviction at source documents from the state
court file. Id. at 502-03. The listing of separate drugs were merely
“means” of committing the crime of possession of a “dangerous drug.” Id.
Importantly, the Elder court did not find any decision from the Arizona
Supreme Court addressing this issue; instead, it based its decision on
the structure and form of the Arizona statutes, as well as the Supreme
Court’s decisions in Mathis and Taylor. Id.
The Seventh Circuit subsequently applied the categorical approach
to hold that two convictions under Indiana and Illinois law could not be
predicate offenses under 21 U.S.C. §§ 841(b)(1)(A) and 802(44) because
the drug schedules under each state’s law was broader than the drugs
criminalized under federal law. United States v. De La Torre, 940 F.3d
938, 948-52 (7th Cir. 2019). The format of the Illinois and Indiana laws
examined in De La Torre were similar to the Arizona statute at issue here
and in Elder: all had one statute which criminalized the possession of a
generic term (“controlled substance” or “controlled or counterfeit
substance”), while a comprehensive list of drugs covered by the generic
term were listed elsewhere in a separate statute. Id. Importantly, both
the Indiana and Illinois statutes, like the Arizona statute, criminalized
possession of “a” controlled substance, not “any” controlled substance.
Id. at 949, 950-51.
In an unpublished opinion, the Ninth Circuit interpreted a
different, but similar, Arizona drug statute and concluded the list of
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separate drugs were elements, not means, and thus a modified
categorical approach could be applied. Gonzalez-Dominguez v. Sessions,
743 F. App’x 808, 812 (9th Cir. 2018) (unpub’d). The Ninth Circuit has
now certified a question to the Arizona Supreme Court as to whether two
Arizona statutes similar to the one Mr. Sorenson was convicted under are
divisible as to drug type—that is, asking whether individual drug types
are elements or means. Romero-Millan v. Barr, 958 F.3d 844, 849 (9th
Cir. 2020). It is unknown as of this writing if the Arizona Supreme Court
will agree to answer the question.
In United States v. Vanoy, 957 F.3d 865, 867 (8th Cir. 2020), the
Eighth Circuit applied a modified categorical approach to determine if a
defendant’s prior Virginia drug conviction could be used to enhance his
sentence for a firearms offense in federal court. Vanoy is distinguishable
from Mr. Sorenson’s case on three grounds. First, Vanoy was concerned
with whether the defendant’s prior conviction constituted a “serious drug
offense” under 18 U.S.C. § 924(e)(2)(A)(ii) and 21 U.S.C. § 802(6), while
Mr. Sorenson’s case presents the question whether his Arizona
conviction was a “felony drug offense” under 21 U.S.C. §§ 841(b)(1)(A)
and 802(44).
Second, the state law of Virginia was clear and settled that the
discrete type of drug a defendant possessed was an element the
Commonwealth had to prove in order to secure a conviction. Vanoy, 957
F.3d at 868. Here, the Seventh Circuit has found Arizona law sufficiently
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clear showing the different drug types are means, not elements; while the
Ninth Circuit has indicated it “f[ou]nd it difficult” to determine the
answer to that question under Arizona’s laws. Romero-Millan, 958 F.3d
at 848-49.
Third, most obviously, Vanoy dealt with Virginia state law while
Mr. Sorenson’s case deals with Arizona law. One state’s statutes may set
forth discrete drugs as elements, while another state’s statutes may
provide discrete drugs are merely means. Thus, a federal court
determining whether a prior conviction can be used to enhance a federal
sentence may apply the categorical approach to Arizona’s laws and the
modified categorical approach to Virginia’s laws. Because, as Mathis
teaches, whether alternatively stated items are means or elements—and
therefore whether the categorical or modified categorical approach
applies—should be determined first and foremost with reference to state
law.
In Martinez v. Sessions, 893 F.3d 1067, 1069 (8th Cir. 2018), the
court approved a decision of the Board of Immigration Appeals to remove
an alien from the United States because he had a prior conviction for
possession of a controlled substance under Missouri state law. The
Board had applied a modified categorical approach after concluding that
different specific drug types were elements of the offense under Missouri
law rather than mere means. Id. The Eighth Circuit affirmed, finding
two decisions from Missouri’s intermediate appellate courts which had
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held that the specific type of controlled substance was an element of the
crime, despite the fact those drugs were listed in a separate statute. Id.
at 1070-71 (citing Missouri v. Harris, 153 S.W.3d 4, 7-8 (Mo. Ct. App.
2005); and Salmons v. Missouri, 16 S.W.3d 635, 637-38 (Mo. Ct. App.
2000)). One of the intermediate Missouri appeals court’s decisions
premised its holding on the fact that the Missouri statute criminalized
possession of “a” controlled substance instead of “any.” Martinez, 893
F.3d at 1071 (quoting Harris, 153 S.W.3d at 7-8).
Again, Martinez is distinguishable in that the Missouri law
available to the court, even though not from the highest state court, all
pointed toward different types of drugs being elements of the crime.
Here, the two decisions from Arizona available to the court point in the
opposite direction—indicating that different types of drugs are not
elements, merely means. Also, Martinez was interpreting whether the
Missouri conviction was either a “controlled substance offense” or an
“aggravated felony” which justified deportation. The issue in this case is
whether Mr. Sorenson’s Arizona conviction was a “felony drug offense.”
The same result from Martinez was reached in another
immigration deportation appeal, Rendon v. Barr, 952 F.3d 963, 967-69
(8th Cir. 2020). In Rendon, the court examined decisions of a Minnesota
intermediate appellate court and concluded that, under Minnesota’s drug
statutes, discrete controlled substances constituted elements of the
offense, not means, thus justifying the immigration board to resort to the
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modified categorical approach in determining if the alien had committed
a deportable drug crime. Id. (discussing Minnesota v. Papadakis, 643
N.W.2d 349, 352 (Minn. Ct. App. 2002)). The fact that Minnesota law
allowed a defendant to be convicted of multiple counts of possession
while possessing different drugs at the same time was strong evidence
the individual substances were elements, not means. Id.
In summary, the evidence from case law and statutory structure as
to whether discrete drugs are elements or means under the Arizona
statue of conviction in Mr. Sorenson’s case is mixed. On the one hand,
the fact that individual substances are listed in a separate schedule
weighs in favor of finding that proof of possession of a discrete substance
is a means, not an element. Headbird, 832 F.3d at 849; McFee, 842 F.3d
at 575. Also, an intermediate state appellate court in Arizona as well as
the Seventh Circuit have found the listing of various controlled
substances in the Arizona law to be means, not elements. Elder, 900
F.3d at 497-502; Castorina, 2010 WL 2450117, at *3-4. In Martinez and
Rendon, where the Missouri and Minnesota Supreme Courts had not yet
spoken, the Eighth Circuit found persuasive decisions of Missouri and
Minnesota intermediate appellate courts addressing the means vs.
elements issue. Rendon, 952 F.3d at 968-69; Martinez, 893 F.3d
at 1069-70. Finally, the Arizona Supreme Court appears to have spoken
en banc, although the statement is devoid of any analysis, when it held
that the elements of an offense under ARS § 13-3407(A)(1) require only
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proof of (1) possession (2) of a dangerous drug, not a specified and
identified particular drug. Cheramie, 189 P.3d at 376.
On the other hand, the fact that Arizona law provides a different
penalty for methamphetamine as well as a handful of other discrete
substances weighs in favor of finding that discrete substances are
elements, not means. Mathis, 136 S. Ct. at 2256. The government’s
argument that the Arizona statute uses the article “a” as opposed to
“any” to describe “dangerous drug” is not entitled to great weight. The
Eighth Circuit’s reliance on the distinction between a statute’s use of the
word “a” as opposed to “any” was drawn by state court decisions of the
Missouri law the court was interpreting. Martinez, 893 F.3d at 1071
(citing Harris). Here, the government has not pointed to any decision of
any Arizona court drawing a similar distinction between “a” and “any”
with regard to the Arizona statute. Mr. Sorenson has, by contrast,
supported his argument with citation to arguably supportive state case
law. In addition, the Elder court reached the opposite conclusion
involving this very Arizona law that uses the word “a” dangerous drug,
not “any.” The court concludes that this is just one factor of many that
must be considered.
The government’s Rule 12(b)(6) motion raises the question at a very
preliminary stage of the litigation whether Mr. Sorenson can show any
set of plausible facts that would enable him to prevail. There is, as of
yet, no definitive opinion from the highest state court in Arizona on the
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issue of whether separate drugs in the Arizona drug statutes are
elements or means. However, the Arizona Supreme Court has been
asked to answer a certified question on this subject by the Ninth Circuit.
This court cannot conclude at this procedural posture of Mr. Sorenson’s
case that he will not be able to prove any set of facts that would enable
him to prevail. For that reason, the court recommends denying the
government’s motion to dismiss as to the issue of whether
Mr. Sorenson’s Arizona conviction is an appropriate predicate offense for
purposes of an § 851 information.
It is worth pointing out that, if Mr. Sorenson had been sentenced
after passage of the First Step Act just a short time after he actually was
sentenced, he would not have received a life sentence because two-time
recidivists under the Act are subject to a 25-year mandatory minimum.5
The First Step Act clearly does not apply to Mr. Sorenson—its very terms
explicitly provide they are not retroactive. However, the court should not
doubly disenfranchise Mr. Sorenson by denying relief now—with
prejudice—at this procedural posture of the case, when the Arizona
Supreme Court may issue a decision weeks or months in the future that,
had it been issued earlier, would have afforded Mr. Sorenson relief. The
court recommends allowing Mr. Sorenson’s claim that his Arizona
5 The First Step Act is discussed in greater detail at subsection E(1) of
the DISCUSSION section of this opinion, infra.
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conviction does not constitute a “felony drug offense” under 21 U.S.C. §§
841(b)(1)(A) and 802(44) to go forward.
One final note on the Arizona conviction. The government cites
United States v. Boleyn, 929 F.3d 932, 938 (8th Cir. 2019), for the
proposition that this court need only determine if Mr. Sorenson’s
underlying conviction was related to controlled substances and whether
it was punishable by more than a year in prison. According to the
government, if the answer to both those questions is “yes,”
Mr. Sorenson’s conviction is a proper predicate offense under
§§ 841(b)(1)(A) and 802(44). See Docket No. 41, pp. 3-4. The court does
not read Boleyn to reach that far.
Boleyn was a consolidated appeal of five different defendants
whose penalties for federal crimes were enhanced under both the ACCA
and § 841(b)(1)(A) of the Controlled Substances Act because they had
prior convictions under the same Iowa drug statute. Id. at 934-36. All
argued that Iowa’s law swept more broadly than federal statutes because
Iowa law included aiding and abetting, and Iowa law required a lesser
mens rea for aiding and abetting than did federal law. Id. The court
rejected that argument because a decision of the Iowa Supreme Court
had held the mens rea required for aiding and abetting under Iowa law
was the same as that required by federal law. Id. at 940 (citing Iowa v.
Lott, 255 N.W.2d 105, 108 (Iowa 1977)). Thus, the bedrock of the Boleyn
decision was that there was no difference in the scope of federal law and
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Iowa law with regard to aiding and abetting—the Iowa law was not
overbroad. Id. The court finds the Boleyn opinion inapposite to the
issue addressed herein regarding Mr. Sorenson’s Arizona conviction,
where both parties agree state law sweeps more broadly than federal law.
2. South Dakota Conviction
On direct appeal, Mr. Sorensen challenged the validity of the South
Dakota conviction as a predicate offense. Sorensen, 893 F.3d at 1065.
On direct appeal, the basis of Mr. Sorensen’s challenge as to the South
Dakota conviction was that it did not qualify as a predicate offense under
§ 841(b)(1)(A) because there was no record of drug quantity to review. Id.
Mr. Sorensen cited Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), in
support of his argument. Because this claim was made for the first time
on appeal, the Eighth Circuit reviewed it for “plain error.” Id. The court
rejected Mr. Sorensen’s claim. Sorensen, 893 F.3d at 1066.
The court explained that Carachuri-Rosendo was unhelpful to
Mr. Sorensen because it considered the definition of an aggravated felony
and the use of a predicate conviction for immigration purposes. Id. The
court explained that the relevance of Carachuri-Rosendo’s holding as it
pertained to Mr. Sorensen’s case, stating that, where a maximum term of
imprisonment of more than one year is directly tied to recidivism, an
actual recidivist finding—rather than the mere possibility of a recidivist
finding for a hypothetical defendant—must be a part of a particular
defendant’s record of conviction in order for that conviction to qualify as
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a felony under § 841(b)(1)(A). Id. So, the court explained, while
Carachuri-Rosendo was applicable generally, it was not applicable in
Mr. Sorensen’s case. Id. This was because, the court explained, “[t]here
was no issue as to whether Sorensen’s South Dakota record of conviction
contained a finding of recidivism sufficient to support an enhancement
under § 841(b)[(1)(A)]. The focus here is whether the South Dakota
conviction satisfied the definition of ‘felony drug offense’ under
§ 802(44).” Id.
The court found that Mr. Sorensen’s South Dakota conviction was
one “punishable by more than one year in prison.” Id. The court
concluded that “the state conviction meets the statutory requirements as
a prior felony drug offense under 21 U.S.C. § 841(b).” Id.
In this § 2255 proceeding, Mr. Sorensen again claims his South
Dakota conviction was improperly used to enhance his sentence, but he
raises a different argument. Here, Mr. Sorensen asserts that, like the
Arizona conviction, the South Dakota conviction does not constitute a
“felony drug offense” under 21 U.S.C. §§ 841(b)(1)(A) and 802(44). See
Docket No. 2, p. 5. Because this new argument was not made on direct
appeal, it is procedurally defaulted unless Mr. Sorensen shows the
requisite cause and prejudice or by demonstrating a fundamental
miscarriage of justice. Bousley, 523 U.S. at 622. For the same reasons
discussed above in connection with this court’s discussion of the Arizona
conviction, the court finds Mr. Sorenson has adequately demonstrated
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cause and prejudice for purposes of the government’s Rule 12(b)(6)
motion. The court, therefore, addresses the merits of Mr. Sorenson’s
claim to determine if his argument is viable as a matter of law.
The South Dakota statute under which Mr. Sorensen was
convicted (SDCL § 22-42-5) (see Docket No. 2-2) stated as follows on the
date of Mr. Sorensen’s conviction:
22-42-5. Unauthorized possession of controlled drug or
substance as felony.
No person may knowingly possess a controlled drug or
substance unless the substance was obtained directly or
pursuant to a valid prescription or order from a practitioner,
while acting in the course of the practitioner's professional
practice or except as otherwise authorized by chapter 34-
20B. A violation of this section is a Class 4 felony.6
Controlled drug or substance, in turn, was defined as “a drug or
substance, or an immediate precursor of a drug or substance, as listed in
Schedules I through IV. The term includes an altered state of a drug or
substance listed in Schedules I through IV absorbed into the human
body.” SDCL § 22-42-1(1). The government does not dispute that, at the
time of Mr. Sorensen’s conviction, both methamphetamine (a drug found
on the federal drug schedules) and diprenorphine (a drug not found on
the federal drug schedules) were listed on Schedule II of the South
Dakota drug schedules. See SDCL § 34-20B-16(6) & (13).
6 In 2013, this statute was amended to add different provisions for
ingestion, and to add different penalties for different drugs, depending
upon which schedule the drug is categorized in. See 2013 revisions.
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Mr. Sorensen asserts that, because the phrase “controlled drug or
substance” is defined in a separate statute, it lists alternative means
rather than elements pursuant to Headbird, 832 F.3d at 849. See also
McFee, 842 F.3d at 575. He further argues that, because both
methamphetamine (included on the federal schedule) and diprenorphine
(not included on the federal schedule) were listed on the same South
Dakota drug schedule (Schedule II), and both carried the same penalty
under South Dakota law, they were “means” not “elements.” Finally,
Mr. Sorenson argues that the South Dakota drug statute is broader than
the federal drug statutes because it criminalizes the act of ingestion of a
controlled substance and treats it as a felony—something neither the
federal law nor any other state law in the nation does.
Mr. Sorensen and the government cite different decisions from the
South Dakota Supreme Court in support of their arguments that
different drugs are means or elements (respectively). Mr. Sorensen cites
State v. Schrempp, 887 N.W.2d 744, 749 (S.D. 2016), while the
government cites State v. Burkman, 281 N.W.2d 436 (S.D. 1979); State v.
Busack, 532 N.W.2d 413, 414, 417 (S.D. 1995); State v. Kienast, 553
N.W.2d 254 (S.D. 1996); and State v. Dosch, 747 N.W.2d 142 (2008).
Mr. Sorensen cites Schrempp for the proposition that, in South
Dakota, the particular drug type is not an element of the crime which
must be agreed upon by the jury. See Docket No. 35, p. 12. The facts of
the Schrempp decision are that Ms. Schrempp and her boyfriend were
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jointly charged in an eight-count indictment that included a charge of
possession of hashish7 in violation of SDCL § 22-42-5, possession of
marijuana in violation of SDCL § 22-42-6, and possession with intent to
manufacture hashish in violation of SDCL § 22-42-2. Schrempp, 887
N.W.2d at 746.
At the pretrial conference the day before trial, the state moved to
amend the indictment to reference “Delta-9-Tetrahydrocannabinol”
instead of “hashish” in counts 3 and 7 of the indictment. Id. The need
for this amendment came after the state received the chemist’s test
results. Id. With both parties’ consent, the trial court amended the
indictment by crossing out the word “hashish” and adding “Delta-9-
Tetrahydrocannabinol AKA Hashish” in the margins along with the
court’s initials and date. Id.
At Ms. Schrempp’s trial, a police detective testified that the active
ingredient in marijuana is Tetrahydrocannabinol (THC). Id. The
detective explained one method of making hashish to the jury, which was
packing the marijuana into tubes, and flushing butane through the
leaves, which caused a resin or wax-like substance to come out the
bottom of the tube. Id. The resin is known as hashish, also sometimes
known as “concentrate.” Id.
7 Greatly simplified, hashish is a concentrated form of marijuana. See
https://www.drugs.com/illicit/hashish.html. (All internet citations in
this opinion last checked on September 21, 2020).
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The jury convicted Ms. Schrempp on all counts in the indictment
except a possession of cocaine count. Id. at 747. Ms. Schrempp
appealed, arguing the trial court was without jurisdiction to amend the
indictment, even with the parties’ consent or, alternatively, that it was
plain error for the court to so amend the indictment. Id. She asserted
there was no evidence presented that Delta-9-Tetrahydrocannabinol and
hashish were the same substance and thus, the amendment could have
been confusing to the jury. Id. In a footnote, the court explained that
though Tetrahydrocannabinol and hashish were listed in the same drug
schedule (Schedule I), they were listed as separate drugs. Id. at 747 n.1.
The court rejected Ms. Schrempp’s jurisdictional argument, but
reviewed for plain error. Id. at 747-48. In other words, the error must
have affected Ms. Schrempp’s substantial rights. Id. at 748. The court
noted that though the name of the substance in counts 3 and 7 had been
changed, the charging statute referenced in the indictment had remained
the same, and the drugs were in the same schedule of controlled
substances. Id. at 749. The jury was correctly instructed as to the
elements of counts 3 and 7. Id. The court stated that “[w]hether the
drug in this case is technically known as hashish or by its chemical
compound Delta-9-Tetrahydrocannabinol, the name is not an essential
element of the offenses as both are controlled schedule I substances.” Id.
Therefore, the court found the amendment before trial was simply one of
form, and did not affect Ms. Schrempp’s substantial rights. Id.
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Although the words written by the Schrempp court are helpful to
Mr. Sorenson—“the name [of a controlled substance] is not an essential
element of the offenses”—read in context, the opinion does not stand for
the proposition that individual substances under South Dakota drug
laws are mere means. The facts of Schrempp itself show that. Although
all eight charges in Schrempp stemmed from evidence seized during a
single search of Ms. Schrempp’s home, and thus were possessed at the
same time by Ms. Schrempp, she was charged with separate counts of
possession of hashish/Delta-9-Tetrahydrocannabinol and possession of
cocaine, both in violation of SDCL § 22-42-5. Id. at 746. Evidence that a
defendant can be charged with multiple counts of violation of the same
statute for simultaneous possession of multiple illegal drugs is strong
evidence that the individual drugs are elements, not means, and thus
resort to the modified categorial approach is warranted. Rendon, 952
F.3d at 969; Martinez, 893 F.3d at 1071. The court next examines South
Dakota cases cited by the government.
In Burkman, Mr. Burkman, was arrested on suspicion of breaking
into two medical buildings. Burkman, 281 N.W.2d at 438. A search of
his vehicle revealed two containers which held four drugs:
(1) methamphetamine; (2) phenmetrazine; (3) cocaine; and (4) hashish.
Id. Mr. Burkman was charged with four counts of possession of a
controlled substance in violation of SDCL § 22-42-5, the same statute
under which Schrempp faced multiple possession charges. Burkman,
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281 N.W.2d at 437. A jury found him guilty solely of count II, possession
of cocaine. Id.
On appeal, Mr. Burkman argued the trial court erred by denying
his motion to consolidate all four counts of the indictment into one count
charging a single act of possession of a controlled substance. Id. at 439.
Mr. Burkman argued the substances were found in the same place and
possession of the substances was prohibited by the same statute. Id.
The South Dakota Supreme Court summarily held the trial court did not
err, but the court did not expand upon its holding because Mr. Burkman
did not pursue the claim in oral arguments before the court. Id.
Mr. Burkman also argued on appeal that his motion for acquittal
as to count II (possession of cocaine) should have been granted, because
the jury returned a not guilty verdict on Counts I, III and IV. Id. at 439,
441. The cocaine had been found in a tin in Mr. Burkman’s car. Id.
Also found in the same tin was methamphetamine, phenmetrazine, and
hashish. Id. Mr. Burkman argued it was logically impossible for the jury
to find he possessed only one of the four drugs that were found in the
same tin. Id. The court rejected this argument. Id. The court explained
the four counts in the indictment were based on the same transaction
because they occurred at the same time and place, and the evidence
required to establish one offense did not differ substantially from the
evidence to establish the others. Id. Consistency of the verdict, however,
was not necessary because the four counts were not interdependent.
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“Each count is treated as if it were separate.” Id. at 441. Because the
evidence was sufficient to convict Mr. Burkman of possession of cocaine,
the court refused to inquire about the jury’s motives to acquit him of the
other charges. Id. Again, Burkman demonstrates a defendant can be
charged under South Dakota’s drug laws with multiple violations of
SDCL § 22-42-5 based on simultaneous possession of different controlled
substances. This is strong evidence that individual substances are
elements, not means. Rendon, 952 F.3d at 969; Martinez, 893 F.3d at
1071.
In Kienast, the defendant, Mr. Kienast, was charged with two
counts of possession of a controlled substance as a result of an
undercover drug buy. When he was arrested, he was in possession of
valium and methamphetamine. Kienast, 553 N.W.2d at 255. He was
convicted of both these counts at trial. Id. Though not an issue on
appeal, the government cites Kienast for the proposition that possession
of different drugs may be charged as different counts in the same
prosecution. See Docket No. 41, p. 15. See also Dosch, 747 N.W.2d at
144 (though not an issue on appeal, defendant was charged with and
convicted of ten counts of possession of a controlled substance; crime
charged was possession of five different drugs that had been stolen from
two different drug stores on two different dates).
It is evident from all the cases cited by both parties that, under
South Dakota law, a defendant can be charged with multiple violations of
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the same drug statute based on simultaneous possession of different
controlled substances. As discussed above, the Eighth Circuit finds this
to be strong evidence that the listing of various drugs are elements, not
means, thus justifying the application of the modified categorical
approach. Both parties agree that, applying this approach,
Mr. Sorenson’s South Dakota conviction counts as a felony drug crime
under 21 U.S.C. §§ 841(b)(1)(A) and 802(44) because possession of
methamphetamine is a violation of both state and federal law.
The court finds South Dakota law establishes that discrete
controlled substances are elements, not means. Though the list of drugs
is found in a different portion of the South Dakota code, this is only one
factor of many to consider and it does not mandate the conclusion that
the various drugs within the schedules are means rather than elements.
Rendon, 952 F.3d at 968-69 (a separate listing is a factor that supports
the idea that the substance is a means rather than an element, but the
separate listing is not a “universal rule” which “automatically” means
such a listing mandates such a result) (quoting Martinez, 893 F.3d at
1072)). The South Dakota statute under which Mr. Sorensen was
convicted (SDCL § 22-42-5), as well as case law arising under that law,
treats possession of discrete substances as elements, not means, and the
modified categorical approach applies.
The court is then permitted to examine a limited number of
documents, including Mr. Sorenson’s South Dakota indictment and
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judgment of conviction (both at Docket No 2-2), to determine whether the
South Dakota conviction qualifies as a predicate offense. Mathis, 136 S.
Ct. at 2248. It does. Specifically, the generic federal crime “felony drug
offense” in § 802(44) is an offense that is: (1) punishable by one year
under any law of the United States or a State or foreign country; and (2)
prohibits or restricts conduct relating to narcotic drugs, marihuana,
anabolic steroids, or depressant or stimulant substances.” See 21 U.S.C.
§ 802(44). The South Dakota indictment and judgment of conviction
persuade the court that Mr. Sorensen’s South Dakota conviction
qualifies as a predicate offense under 18 U.S.C. §§ 841(b)(1)(A) and
802(44). Count II of the indictment (Docket No. 2-2, p. 1) charged
Mr. Sorensen with “possess[ion] [of] a controlled drug or substance[,]
methamphetamine[,] which is listed in Schedule II, which conduct on the
part of the defendant was in violation of SDCL 22-42-5.” Id. The
judgment of conviction (Docket No. 2-2, p. 3) states Mr. Sorensen was
found guilty of count II of the indictment. It further states Mr. Sorensen
was sentenced to ten years’ imprisonment with eight years suspended for
this crime. Therefore, Mr. Sorensen’s conviction for possession of
methamphetamine in violation of SDCL § 22-42-5 was a conviction
“punishable by imprisonment for more than one year under any law of . .
. a State” under 21 U.S.C. § 802(44). The court recommends granting
the government’s motion to dismiss Mr. Sorensen’s claim that his South
Dakota drug conviction did not qualify as a predicate offense.
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D. Ineffective Assistance of Counsel Claims
1. Standard Applicable to Ineffectiveness Claims
The standard set forth as section C(1)(b) of the DISCUSSION section
of this opinion applies to Mr. Sorenson’s claims of ineffective assistance
of counsel.
2. Failing to Challenge Whether Mr. Sorensen’s South
Dakota and Arizona Drug Convictions Qualified as
“felony drug convictions”
Because the court has recommended dismissal of Mr. Sorensen’s
claim that his South Dakota conviction was not an appropriate predicate
conviction, the court also recommends dismissal of his claim that trial
and appellate counsel were ineffective for failing to challenge the South
Dakota conviction on that ground. Failure to raise a meritless claim
does not constitute ineffective assistance of counsel. Thomas v. United
States, 951 F.2d 902, 904 (8th Cir. 1992) (“because the claim lacks
merit, [the petitioner’s] attorney was not ineffective for failing to raise
it.”).
As to failing to challenge the Arizona conviction as a predicate
offense under 21 U.S.C. §§ 841(b)(1)(A) and 802(44), the court has
analyzed that above, too. Because the government’s motion is a Rule
12(b)(6) motion, and because none of Mr. Sorenson’s trial or appellate
counsel have addressed the issue of whether they considered challenging
the Arizona conviction as a predicate offense and, if so, why they chose
not to raise the issue, the court finds Mr. Sorenson has raised a
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plausible claim upon which he may be able to prevail. For that reason,
the court recommends denying the government’s motion to dismiss
Mr. Sorenson’s ineffective assistance claim relating to failure to challenge
the Arizona conviction as a predicate offense.
3. Failing to Investigate and Present at Least Two Defense
Witnesses
Mr. Sorensen asserts his trial counsel were ineffective for failing to
call two witnesses at trial to testify in his defense: Larry Kuhnert and
Brian Zentner. Mr. Sorensen submitted a declaration (attached to his
response in opposition to the government’s motion to dismiss) explaining
that he told his lawyers before trial that he wanted these two witnesses
to testify, and what he thought they would say. See Docket No. 35-3.
Mr. Sorensen avers he told his trial attorneys that Larry Kuhnert
had recently loaned “money” (without specifying an amount) to get
Mr. Sorensen’s 1971 Bronco out of Mr. Kuhnert’s brother’s body shop.
Docket No. 35-3, ¶ 1. Mr. Sorensen mentioned this at his sentencing
hearing. See ST (CR Docket No. 157), pp. 27-28 (“I borrowed that
$15,000 from Larry Kuhnert. Because I had 30-some—or I had $40,000
in backpay coming.”). At trial, however, the government presented expert
testimony to the effect that large amounts of cash are linked to drug
trafficking. TT (CR Docket No. 137), p. 406.
In his declaration, Mr. Sorensen states the body shop in Valley
Springs is “on the way back from Luverne” and that is why he had so
much cash on him when he was arrested. Docket No. 35-3, ¶¶ 1-2. He
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wanted his attorneys to speak to Mr. Kuhnert to verify this to explain
why he had so much money on his person, and to attempt to get the
money back from law enforcement. Id. at ¶ 4. Mr. Sorensen avers that
Mr. Kuhnert attended each day of his trial. Id. at ¶ 6. Mr. Sorensen
avers he attended a “4-20” festival and concert with Mr. Zentner. Id. at ¶
7. He avers Mr. Zentner took him shopping at an outlet mall, where
Mr. Sorensen bought Lucky® brand jeans for a discounted price,
thereafter selling them in Sioux Falls for $100 a pair to help pay for the
cost of his trips to Arizona. Id. at ¶ 8.
Mr. Sorensen’s trial counsel (Mr. Rivers and Mr. Grostyan)
submitted affidavits addressing Mr. Sorensen’s assertions regarding
these two witnesses’ potential testimony. Attorney Rivers does not recall
discussing Mr. Zentner, and does not mention Mr. Kuhnert in his
affidavit. See Docket No. 23.
Attorney Grostyan, however, recalls discussing Mr. Zentner with
Mr. Sorensen. Docket No. 24, ¶ 7. Attorney Grostyan remembers that
Mr. Sorensen did not want Mr. Zentner to testify at trial. Attorney
Grostyan nevertheless researched the music festival event in Arizona that
Mr. Sorensen indicated he attended with Mr. Zentner. Attorney Grostyan
found many events associated with “420” which took place on or around
April 20, 2016, but found nothing that matched the specific event
description provided by Mr. Sorensen. Id. Further, Attorney Grostyan
explained that these “420” events in general are associated with
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marijuana.8 Given the fact that Mr. Sorensen was being prosecuted for a
drug crime, and that Attorney Grostyan could not find the specific event
Mr. Sorensen claimed to have attended, Attorney Grostyan chose to
abandon his efforts regarding potential witness Mr. Zentner. Id.
Further, it was Attorney Grostyan’s belief that, given the government’s
evidence about multiple shipments from Arizona, proving up non-
nefarious activities while Mr. Sorensen was in Arizona for each of these
trips was unnecessary and potentially harmful to Mr. Sorensen’s defense.
Id.
Attorney Grostyan avers he was unable to contact Mr. Kuhnert
prior to trial, and he believed that, given his assessment of the
government’s evidence against Mr. Sorensen, Mr. Kuhnert’s purported
testimony was not necessary and may have been risky to the defense in
any event. Id.
“[A] ‘meaningful opportunity to present a complete defense’ does
not translate into the right of a defendant to present any evidence he
may deem important to his defense.” Strickland v. Lee, 471 F. Supp. 2d
557, 617 (W.D.N.C. 2007) (quoting Taylor v. Illinois, 484 U.S. 400, 410
(1988)). Instead, to prove prejudice, Mr. Sorensen must show the
proposed uncalled witness would have testified in his defense, that his
testimony would have been favorable, and that his testimony had the
8 See https://time.com/4292844/420-april-20-marijuana-pot-holiday-
history/.
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potential to have “changed the outcome of the trial.” See Lawrence v.
Armontrout, 900 F.2d 127, 130 (8th Cir. 1990); Stewart v. Nix, 31 F.3d
741, 744 (8th Cir. 1994). In assessing ineffective assistance claims
under the Strickland standard, “[t]he decision not to call a witness is a
virtually unchallengeable decision of trial strategy.” United States v.
Staples, 410 F.3d 484, 488 (8th Cir. 2005) (citations omitted,
punctuation altered). The habeas court must avoid “the distorting effects
of hindsight and try to evaluate counsel’s conduct by looking at the
circumstances as they must have appeared to counsel at the time.” Id.
(citations omitted, punctuation altered).
“[C]omplaints of uncalled witnesses are not favored . . . because
allegations of what the witness would have testified [to] are largely
speculative.” Evans v. Cockrell, 285 F.3d 370, 377 (5th Cir. 2002).
“[T]he petitioner ordinarily should explain . . . with some precision, the
content of the testimony [the witness] would have given at trial.”
Lawrence, 900 F.2d at 130.
Here, counsel has explained why the two witnesses Mr. Sorensen
now claims should have been called to testify at his trial were not called
to testify. The decision to call these witnesses is a decision of trial
strategy that is “virtually unchallengeable” under the Strickland
standard. Staples, 410 F.3d at 488. Mr. Sorensen has not met his
burden to show that calling now-proposed witnesses at trial would have
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favorably influenced and/or changed the outcome of his trial. Lawrence,
900 F.2d at 130.
Mr. Sorensen has submitted a declaration. Mr. Sorensen’s
declaration outlines what he told his lawyers his now-proposed witnesses
would have said. Neither of the proposed witnesses, however, has
submitted an affidavit indicating a willingness to testify to the substance
of the testimony that Mr. Sorensen indicates in his own declaration.
Additionally, as explained by the Eighth Circuit in its opinion on direct
appeal, the evidence in Mr. Sorensen’s case was overwhelming.
On direct appeal Mr. Sorensen argued the trial court erred by
failing to sua sponte exclude the testimony of the fingerprint expert.
Sorensen, 893 F.3d at 1064-65. The court rejected that claim,
explaining Mr. Sorensen’s substantial rights were not affected even if the
court erred by admitting the testimony because of the additional
evidence that supported his conviction. Id. at 1065. That evidence,
according to the court, included “[t]he testimony of [Ms.] Hartz (whose
credibility the jury discerned), the investigative evidence of the shipments
from Arizona that corresponded with Sorensen’s trips to Arizona, and the
extracted data from Sorensen’s phones including the identical
misspelling of cities in Sorensen’s contact list and the shipment labels,
as well as myriad other evidence.” Id. (emphasis added).
Mr. Sorensen has therefore failed to carry his burden to show
either of his proposed witnesses (1) would have been willing to testify on
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his behalf; (2) what their testimony would have been or, most
importantly; (3) that such testimony would have had the potential to
change the outcome of his jury trial. As such, this court respectfully
recommends that the government’s motion to dismiss Mr. Sorensen’s
claim that trial counsel was ineffective for failing to investigate and
present at least two defense witnesses at trial be granted.
4. Ineffective Assistance for Advising Mr. Sorensen to Give
Up His Right to Testify on His Own Behalf at Trial
In his § 2255 motion, Mr. Sorensen acknowledges he, on the
record, waived his right to testify during his jury trial. See Docket No. 2,
p. 10. He asserts, however, that he “wanted to testify, but was talked out
of doing so by his trial attorneys.” Id. He further asserts that, had he
testified at trial, he “could have” rebutted the testimony of his co-
conspirator, Gayle Hartz, and “could have” explained: why he traveled to
Arizona, why he had so much cash on his person when he was arrested,
and “other matters.” He asserts his counsel’s advice not to testify rose to
the level of ineffective assistance because his testimony, especially in
combination with that of the two witnesses his lawyers should have
called to testify but did not, “would have resulted in a different outcome
at trial.” Id.
Mr. Sorensen’s declaration also addresses this issue. See Docket
No. 35-3, ¶¶ 12-19. Mr. Sorensen states in his declaration that his trial
attorneys informed him that if he testified, the prosecutor would “eat
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[him] up” and bring up his past drug charges. Id. at ¶ 12.9 He also
states his attorneys did not prepare him to testify by practicing direct or
cross-examination with him. Id. at ¶ 13. Had he been allowed to testify,
he would have explained that he went to Arizona to visit his friend Brian
Zentner, and when he did, he mailed jeans back. Id. at ¶ 14. He would
have further testified that Gayle sent a sealed envelope along with him to
Arizona, that Gayle’s friends came over to Brian’s to pick up and send
crafts back. Id. Mr. Sorensen gave Gayle’s friends his jeans to send
back, and they would bring back the receipt and tracking information to
prove they mailed the jeans with her crafts. Id.
Mr. Sorensen also explains in his declaration that he disagrees
with the statements made by his trial attorneys that they discussed the
pros and cons of Mr. Sorensen testifying in his own defense. Docket No.
35-3, ¶ 15. Instead, Mr. Sorensen asserts his attorneys pressured him to
plead guilty from the beginning because “they wanted a slam dunk
$25,000.” Id. Mr. Sorensen also disagreed with his attorneys’
statements that they never pressured him about whether or not to
testify. Id. at ¶ 16.
Instead, Mr. Sorensen insists that, especially after his wife testified
for the government, he wanted to testify to assure the jury that he was
9 Assuming this assertion is true, the district court disabused
Mr. Sorensen of this notion during its colloquy with him. The court
advised Mr. Sorensen if he chose to testify the jury would be informed of
the existence of his previous felony, but not the nature of the conviction.
TT, pp. 424-26.
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not a “skirt chaser” because he believed she had falsely testified he had
cheated on her and that such testimony was damaging to him. Id.
Mr. Sorensen states his wife testified on Wednesday, but when he told
his lawyers he may need to take the stand, his lawyers told him they
needed to wrap the trial up the next day because they needed to be in
court in Minneapolis on Friday. Id. Furthermore, Mr. Sorensen
explains, his lawyers did not tell him about any benefits of testifying on
his own behalf, only about the risks of doing so. Id. at ¶ 17.
Mr. Sorensen disagrees that no pressure was put on him not to testify.
Id. at ¶ 18. He explains he told the court he was giving up his right to
testify because his lawyers “scared” him, because it was toward the end
of trial, and because his lawyers had advised him on Wednesday that
they needed to wrap things up the next day because they had other
things to do. Id. at ¶ 19.
A review of the trial transcript (CR Docket No. 137), pp. 424-26
reveals the following discussion which occurred outside the presence of
the jury:
MR. GROSTYAN: Yes. I don't know if you want to do any
waiver of Defendant's right to testify?
THE COURT: Yes. Let's do that now. I was advised last night
by Defense counsel, Mr. Sorensen, that you were not going
to testify. Is that correct?
THE DEFENDANT: That's correct.
THE COURT: And you talked all of this over with your
lawyers?
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THE DEFENDANT: Yes, sir, I did.
THE COURT: Are you satisfied with the advice and
representation your lawyers have given you on this point?
THE DEFENDANT: Yes.
THE COURT: Are you satisfied with the advice and
representation they've given you generally throughout the
course of preparation as well as this trial?
THE DEFENDANT: Yes, Your Honor.
THE COURT: You understand that you have a right to take
the stand and to testify and tell your story, including
proclaiming your innocence. You understand that?
THE DEFENDANT: I understand that.
THE COURT: As I'm talking to you here today, are you under
the influence of any drugs or alcohol that would affect your
ability to think in any way?
THE DEFENDANT: No, sir.
THE COURT: How old a man are you?
THE DEFENDANT: Fifty-four. I'll be 55 this month.
THE COURT: Which day?
THE DEFENDANT: The 28th.
THE COURT: Mine is the 21st, so that's why I was curious.
How much education have you had?
THE DEFENDANT: I got a GED.
THE COURT: How long ago?
THE DEFENDANT: I got it when I was 30-something.
THE COURT: Where did you get it?
THE DEFENDANT: Kilian College in Sioux Falls.
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THE COURT: Do you have any questions about the right that
you have to testify?
THE DEFENDANT: No, Your Honor.
THE COURT: You realize, and also I ruled last night that if
you did testify, the jury would become aware that you had
another conviction, but the fact that that other conviction
was for drug distribution, they would not be apprised of. You
understand that?
THE DEFENDANT: I understand.
THE COURT: Considering all of that, is it still your decision
not to testify?
THE DEFENDANT: Yes, Your Honor.
THE COURT: All right. Very well. Bring in the jury.
See TT (CR Docket No. 137), pp. 424-26.
The United States Supreme Court has explicitly stated that, under
the Fourteenth Amendment due process clause, the Sixth Amendment
compulsory process clause, and the Fifth Amendment prohibition against
compelled testimony, criminal defendants have a constitutional right to
choose whether to testify on their own behalf. Rock v. Arkansas, 483
U.S. 44, 51-53 (1987). Because the right to testify is a fundamental
constitutional right, only the defendant is empowered to waive it. United
States v. Bernloehr, 833 F.2d 749, 751 (8th Cir. 1987) (citing Jones v.
Barnes, 463 U.S. 745, 751 (1983)) (other citations omitted). The
defendant’s waiver of this right must be made voluntarily and knowingly.
Bernloehr, 833 F.2d at 751.
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In Bernloehr, the court rejected the habeas petitioner’s claims that
his desire to testify at his own criminal trial was “overcome” by his
attorney, and that the trial court had an affirmative duty to inquire of
him whether he wished to testify. Id. The court found that
Mr. Bernloehr was a “mature and sophisticated businessman” who was
represented by able counsel. Id. Further, Mr. Bernloehr made no
objection when his counsel rested the defense case without calling
Mr. Bernloehr to the stand. Id. at 752. In such circumstances, the court
found, the defendant must act affirmatively to assert his right rather
than sit idly by and indicate his apparent acquiescence with his
attorney’s advice. Id. “The defendant may not, as Bernloehr did,
indicate his apparent acquiescence in his counsel’s advice that he not
testify, and then later claim that his will to testify was ‘overcome.’ ” Id.
(citing Hollenbeck v. Estelle, 672 F.2d 451, 453 (5th Cir. 1982)).
The Eighth Circuit has repeatedly held that a post-conviction
petitioner may not prevail under such circumstances, whether in the
context of an ineffective assistance claim, or whether the claim is
grounded solely in the petitioner’s constitutional right to testify. See e.g.
Frey v. Schuetzle, 151 F.3d 893, 897-98 (8th Cir. 1998) (petitioner’s
claim he did not knowingly and voluntarily waive his right to testify at
trial rejected where petitioner claimed he told his attorney he wanted to
testify, the attorney advised against it, and petitioner voiced no objection
when the attorney rested the defense without calling petitioner to testify);
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Possick v. United States, No. 86-2356, 1992 WL 205725, at *1 (8th Cir.
1992) (per curiam) (ineffective assistance claim rejected where petitioner
argued counsel denied him his right to testify, but petitioner admitted he
was aware of his right at trial but did nothing to assert it).
Here, Mr. Sorensen asserts he wanted to testify but was “talked
out of doing so” by his attorneys. Docket No. 2, p. 10. He also claims
his attorneys “scared” him into not testifying. Docket No. 35-3, ¶ 19.
Attorney Rivers’ affidavit (Docket No. 23, ¶ 7) explains that he and
attorney Grostyan discussed the possibility of Mr. Sorensen testifying on
his own behalf with Mr. Sorensen, and how Mr. Sorensen’s testimony
might weigh “for or against him” at trial. Ultimately, however, attorney
Rivers averred the decision whether to testify on his own behalf was left
solely to Mr. Sorensen. Id. Attorney Grostyan’s affidavit indicates that
attorney Grostyan likewise recalls talking to Mr. Sorensen about the
potential benefits and risks of Mr. Sorensen testifying on his own behalf.
Docket No. 24, ¶ 8. Attorney Grostyan averred that the decision whether
to testify was made by Mr. Sorensen, without having been put under
pressure or having been convinced by attorney Grostyan or attorney
Rivers. Id. These attorneys’ statements are supported by
Mr. Sorensen’s above-cited on-the-record (out of the presence of the jury)
statement to the court that Mr. Sorensen was fully aware of his right to
testify, that he was satisfied with his lawyer’s advice about this issue,
and that he decided not to testify. See TT (CR Docket No. 137), pp. 424-
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26. Under these circumstances, Mr. Sorensen cannot be heard to now
complain that his attorneys’ ineffectiveness prevented him from testifying
or that he was deprived of his constitutional right to testify. Frey, 151
F.3d at 897-98; Possick, 1992 WL 205725, at *1; Bernloehr, 833 F.2d at
752. As such, this court recommends that the government’s motion to
dismiss Mr. Sorensen’s claim that trial counsel was ineffective for
advising Mr. Sorensen to give up his right to testify be granted and the
claim dismissed.
E. Mr. Sorensen’s Life Sentence for a Drug Offense Violates His
Rights Under the Equal Protection Clause and the Eighth
Amendment
Mr. Sorensen raises two challenges to the imposition of a life
sentence for his nonviolent drug crime. The court addresses these
challenges in turn below.
1. Equal Protection
In this, his § 2255 motion, Mr. Sorensen asserts the imposition of
a life sentence for a nonviolent drug offense violates the Equal Protection
Clause of the Fourteenth Amendment. This argument is based upon the
application of the First Step Act10 to persons who were sentenced after
December 21, 2018, (the date the First Step Act was enacted), but not to
persons who were sentenced before December 21, 2018.
10 The First Step Act of 2018. Pub. L. No. 115-391, § 401(a)(2), 132 Stat.
5194, 5220-21 (enacted Dec. 21, 2018).
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Less than two years after Mr. Sorensen was sentenced, Congress
eliminated mandatory life sentences for most drug offenders in the First
Step Act. The mandatory sentence under 21 U.S.C. § 841(b)(1)(A) for a
person with two qualifying prior convictions is now 25 years to life.11 Id.
at § 401(a). Under the First Step Act, simple possession convictions no
longer qualify to enhance the sentencing range under 21 U.S.C. §
841(b)(1)(A). Instead, under the First Step Act, a prior conviction for a
“serious drug felony” or a “serious violent felony” can qualify as a
sentence enhancement under 21 U.S.C. § 851.
The term “serious drug felony” does not include simple possession
offenses. “Serious drug felony” means an offense “involving
manufacturing, distributing, or possessing with intent to manufacture or
distribute a controlled substance” for which the maximum penalty is 10
years or more, the offender served more than 12 months in prison, and
the offender was released within 15 years of the instant offense.
21 U.S.C. § 802(57); 18 U.S.C. § 924(e)(2)(A)(ii). Thus, if Mr. Sorensen
had been sentenced after the enactment of the First Step Act, neither of
his prior convictions (both of which were simple possession convictions)
would have qualified to enhance his sentence. The First Step Act by its
own terms, however, does not apply retroactively to those persons who
were sentenced before the date of its enactment. First Step Act, Pub. L.
11 The mandatory minimum sentence for a defendant with one prior
conviction for a “serious drug felony” is now 15 years. First Step Act at
§ 401(b).
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No. 115-391, § 401(c) (explaining that applicability of the Act is confined
to those who have yet to be sentenced as of such date of enactment).
Mr. Sorensen challenged his life sentence on direct appeal, but he
did not raise an Equal Protection claim. During the pendency of his
appeal, however, the First Step Act had not yet been enacted.
Mr. Sorensen filed his notice of appeal on May 3, 2017 (see CR Docket
No. 150) and the Eighth Circuit issued its decision on June 26, 2018
(Sorensen, 893 F.3d at 1060)—some six months before the First Step Act
was enacted. As such, the government does not raise procedural default
as a defense to this claim, and the court likewise does not discuss
procedural default.
However, Mr. Sorensen’s Equal Protection claim fails on the merits.
The equal protection clause requires the government to “treat similarly
situated people alike,” a protection that applies to prisoners. Murphy,
372 F.3d at 984. To show an equal protection violation, Mr. Sorensen
must show: (1) he is treated differently than a similarly situated class of
inmates, (2) the different treatment burdens a fundamental right, and (3)
there is no rational relation to any legitimate penal interest. Id. (citing
Rouse v. Benson, 193 F.3d 936, 942 (8th Cir. 1999) (citing City of
Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985))).
In Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 815-16 (8th Cir.
2008), the Eighth Circuit explained that, for a prisoner to prevail on an
equal protection claim, he “must show that he is treated differently from
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similarly-situated inmates and that the different treatment is based upon
either a suspect classification or a fundamental right.” Id. If an equal
protection claim is not based on a “suspect class” or a fundamental right,
it is subject to a rational basis review. Gilmore v. County of Douglas,
State of Nebraska, 406 F.3d 935, 937 (8th Cir. 2005) (citations omitted).
This protection applies to the federal government through the Fifth
Amendment. Schwieker v. Wilson, 450 U.S. 221, 226 n.6 (1981). A
legislative classification among non-suspect class groups violates the
Equal Protection clause if it bears no “rational relation to some legitimate
end.” Romer v. Evans, 517 U.S. 620, 631 (1996). “Neither prisoners nor
indigents constitute a suspect class . . . .” Murray v. Dosal, 150 F.3d
814, 818 (8th Cir. 1998).
The rational basis review is “the paradigm of judicial restraint.
Congress does not violate the right to equal protection merely because
the classifications made by its laws are imperfect, or because in practice
a classification results in some inequality.” Minn. Senior Fed’n, Metro.
Region v. United States, 273 F.3d 805, 808 (8th Cir. 2001) (citations
omitted, punctuation altered).
The United States Supreme Court has explained the rational basis
review in an equal protection analysis as follows:
[It] is not a license for courts to judge the wisdom, fairness or
logic of legislative choices. Nor does it authorize the
judiciary to sit as a superlegislature to judge the wisdom or
desirability of legislative policy determinations made in areas
that neither affect fundamental rights nor proceed along
suspect lines. For these reasons, a classification neither
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involving fundamental rights nor proceeding along suspect
lines is accorded a strong presumption of validity. Such a
classification cannot run afoul of the Equal Protection
Clause if there is a rational relationship between the
disparity of treatment and some legitimate governmental
purpose. Further, a legislature that creates these categories
need not actually articulate at any time the purpose or
rationale supporting its classification. Instead, a
classification must be upheld against an equal protection
challenge if there is any reasonably conceivable state of facts
that could provide a rational basis for the classification.
A [s]tate, moreover, has no obligation to produce evidence to
sustain the rationality of a statutory classification. A
legislative choice is not subject to courtroom factfinding and
may be based on rational speculation unsupported by
evidence or empirical data. A statute is presumed
constitutional, . . ., and the burden is on the one attacking
the legislative arrangement to negative every conceivable
basis which might support it, whether or not the basis has a
foundation in the record. Finally, courts are compelled
under rational-basis review to accept a legislature’s
generalizations even when there is an imperfect fit between
means and ends. A classification does not fail rational-basis
review because it is not made with mathematical nicety or
because in practice it results in some inequality.
Heller v. Doe, 509 U.S. 312, 319-320 (1993) (citations omitted,
punctuation altered).
Mr. Sorensen concedes that a rational review is the proper
standard to apply to the congressional decision that the First Step Act
should not be retroactively applied to him. The government notes that
many courts, including the Eighth Circuit, have rejected equal protection
challenges to sentencing reform statutes that have lowered penalties for
drug defendants prospectively but not retroactively. See e.g. United
States v. McBride, 426 F. App’x 471, 473-74 (8th Cir. 2011); United
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States v. Williams, 413 F. App’x 928, 930 (8th Cir. 2011) (both rejecting
equal protection challenges to the Fair Sentencing Act of 2010).
In Dorsey v. United States, 567 U.S. 260 (2012), the United States
Supreme Court rejected a challenge to the prospective-only application of
the Fair Sentencing Act of 2010 (FSA).12 Id. at 280. There, the Court
explained that any disparity caused by the difference between the new
and old sentencing statutes “reflect[s] a line-drawing effort, [and] will
exist whenever Congress enacts a new law changing sentences (unless
Congress intends re-opening sentencing proceedings concluded prior to a
new law’s effective date).” Id. The Court also explained that it was the
“ordinary practice” to apply new penalties to defendants who had not yet
been sentenced at the time the new law is enacted, while withholding the
benefit of the change from those who had already been sentenced. Id.
Circuit courts of appeal other than the Eighth Circuit have also
found that prospective-only application of the FSA does not violate the
equal protection clause. See e.g. United States v. Bigesby, 685 F.3d
1060, 1066 (D.C. Cir. 2012) (rejecting equal protection challenge to FSA’s
lack of retroactivity; finding Congress’ interest in the finality of sentences
was a rational basis for limiting retroactive effect of the new statute);
United States v. Keyes, 447 F. App’x 294, 296 (3d Cir. 2011) (rejecting
equal protection challenge to the FSA); United States v. Speed, 656 F.3d
714, 720 (7th Cir. 2011) (disparate treatment of pre- and post-act
12 The FSA reduced the penalties for convictions related to crack cocaine.
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defendants is “plainly rational”); United States v. Washington, 449 F.
App’x 624, 626 (9th Cir. 2011) (that FSA does not apply retroactively
does not implicate equal protection); United States v. Coleman, 416 F.
App’x 41, 44 (11th Cir. 2011) (rejecting equal protection challenge
to FSA).
Mr. Sorensen asserts there is no rational basis to treat persons,
such as himself, who were sentenced before the passage of the First Step
Act (December 21, 2018), differently than persons who were sentenced
after that date. But Mr. Sorensen offers no way to distinguish the failure
to retroactively apply the First Step Act from the failure to retroactively
apply the Fair Sentencing Act, which has been universally approved
under the reasoning of the cases cited above. In the absence of some
concrete identifiable difference in the analysis of the two acts, this court
must agree with the government—there is none. As such, this court
must abide by the express mandate of the First Step Act itself, which
provides that its provisions are not retroactive. The disparities between
pre-Act sentences and post-Act sentences, as explained by the Supreme
Court in Dorsey, “reflect[ ] a line-drawing effort [and] will exist whenever
Congress enacts a new law changing sentences (unless Congress intends
re-opening sentencing proceedings concluded prior to a new law’s
effective date).” Dorsey, 567 U.S. at 280. Congress’ decision to expressly
make final any sentences imposed before the passage of the First Step
Act final is a rational basis for failing to make the Act retroactive.
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Bigesby, 685 F.3d at 1066. Mr. Sorensen’s equal protection challenge
therefore fails on the merits. Accordingly, this court recommends that
the government’s motion to dismiss Mr. Sorensen’s claim that his life
sentence violates the Equal Protection Clause of the Fourteenth
Amendment be granted and that claim be dismissed.
2. Eighth Amendment
At the sentencing hearing, the district court acknowledged it would
not have imposed a life sentence if not required to do so by the
enhancement statute. See ST (CR Docket No. 157), p. 28. But, as
explained above, even without the enhancement, the very bottom of
Mr. Sorensen’s guideline range would have been 360 months (30 years),
which the district court indicated it “probably would” have imposed. Id.
The government argues that, because Mr. Sorensen was 55 years old at
the time of his sentencing, a life sentence and a 30-year term of
imprisonment are virtually interchangeable. But the fact that there may
be little practical difference should not be an objection to justice being
done. Not to mention a term of years leaves intact a prisoner’s hope and
incentive to better himself, while a life sentence does neither.
Mr. Sorensen argued on direct appeal, as he does in this, his
§ 2255 motion, that the imposition of a life sentence for his non-violent
drug crime violates his Eighth Amendment right against cruel and
unusual punishment because he claims it is disproportionate to the
offense.
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The Eighth Circuit considered but rejected this claim. Sorensen,
893 F.3d at 1067. As such, this claim is barred because it was already
made but rejected on direct appeal. Sun Bear, 644 F.3d at 702.
Mr. Sorensen has not claimed the imposition of the life sentence
constitutes “a fundamental defect which inherently results in a complete
miscarriage of justice.” Davis, 417 U.S. at 346-47; Sun Bear, 644 F.3d
at 704. He has also not presented convincing new evidence of actual
innocence. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001).
Therefore, Mr. Sorensen should not be allowed to re-litigate whether his
life sentence violates the Eighth Amendment prohibition against cruel
and unusual punishment in this, his § 2255 proceeding. Accordingly,
this court recommends that the government’s motion to dismiss
Mr. Sorensen’s claim that his life sentence violates the Eighth
Amendment be granted and the claim be dismissed.
F. Rehaif Claim
Mr. Sorensen was convicted in October, 2016, and sentenced in
April, 2017. In June 2019, the United States Supreme Court decided
Rehaif v. United States, ___ U.S. ___, 139 S. Ct. 2191 (2019). In Rehaif,
the defendant was prosecuted under 18 U.S.C. § 922(g), which prohibits
certain persons from possessing firearms, including felons and persons
who are aliens or who are illegally or unlawfully in the United States. A
separate statutory provision, § 924(a)(2), adds that anyone who
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knowingly violates the first provision shall be fined or imprisoned for up
to 10 years.
Mr. Rehaif had entered the United States on a nonimmigrant
student visa to attend university. Id. at 2194. He was dismissed from
school for poor grades and the university told him his immigration status
would be terminated unless he transferred to a different university or left
the country. Id. He did neither, and subsequently visited a firing range,
where he shot two guns. Id. The government prosecuted him for
possessing firearms as an alien unlawfully in the United States in
violation of 18 U.S.C. § 922(g) and 924(a)(2). Id.
The trial court instructed the jury, over Mr. Rehaif’s objection, that
the government was not required to prove Mr. Rehaif knew he was
illegally or unlawfully in the United States. Id. The jury convicted
Mr. Rehaif. Id. Mr. Rehaif appealed, arguing the district court erred by
instructing the jury it did not need to find that Mr. Rehaif knew he was
in the country illegally. Id. The Eleventh Circuit affirmed. Id. at 2195.
The Supreme Court undertook to decide whether the “knowingly”
requirement pertained solely to the defendant’s possession of the firearm,
or also to the relevant status (i.e., that the defendant was an alien
unlawfully in the United States.) Id. The lower courts were not in
agreement on this point, with most finding that knowledge of status was
not required. See e.g. United States v. Williams, 588 F.2d 92, 92 (4th
Cir. 1978); United States v. Schmitt, 748 F.2d 249, 252 (5th Cir. 1984);
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United States v. Oliver, 683 F.2d 224, 229 (7th Cir. 1982); United States
v. Montgomery, 701 F.3d 1218, 1221 (8th Cir. 2012); United States v.
Lupino, 480 F.2d 720, 723-24 (8th Cir. 1973); United States v. Pruner,
606 F.2d 871, 874 (9th Cir. 1979). But see United States v. Renner, 496
F.2d 922, 926 (6th Cir. 1974) (contra).
The Court explained that whether a criminal statute requires the
government to prove a defendant acted knowingly is a question of
congressional intent. Rehaif, 139 S. Ct. at 2195. The Court started from
a “longstanding presumption” that Congress intends to require a
culpable mind regarding each of the statutory elements that criminalize
“otherwise innocent conduct.” Id. This presumption applies with equal
force when Congress includes a scienter provision in the statute itself.
Id. The Court explained that, when the statute prescribes the type of
culpability sufficient for the commission of the offense without
distinguishing among the material elements, such provision applies to all
the material elements unless a contrary purpose plainly appears. Id. at
2195 (citing ALI, Model Penal Code, § 2.02(4), p. 22 (1985)).
The Court found the statutory text of §§ 922 and 924 supported
the presumption. Id. The term “knowingly” in § 924(a)(2) modifies the
verb “violates” and its direct object, which in Mr. Rehaif’s case was
§ 922(g).
The proper interpretation of the statute thus turns on what
it means for a defendant to know that he has “violate[d]”
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§ 922(g). . . . § 922(g) makes possession of a firearm or
ammunition unlawful when the following elements are
satisfied: (1) a status element (in this case, “being an alien
. . . illegally or unlawfully in the United States”); (2) a
possession element (“to possess”); (3) a jurisdictional element
(“in or affecting commerce”); and (4) a firearm element (a
“firearm or ammunition”).
Id. at 2195-96.13
Jurisdictional elements aside, the text of § 922(g) lists the elements
that make a defendant’s behavior criminal. Id. at 2196. Therefore, “[a]s
‘a matter of ordinary English grammar,’ we normally read the statutory
term ‘ “knowingly” as applying to all the subsequently listed elements of
the crime.’ ” Id. (citing Flores-Figueroa v. United States, 556 U.S. 646,
650 (2009)).
The Court continued therefore, that it was the defendant’s status,
not merely his conduct, that made the difference. Id. at 2197. Without
knowledge of his status, the Court explained, the defendant may well
have lacked the intent needed to make his behavior wrongful. Id.
Instead, his behavior might have been an innocent mistake. Id. The
Court explained that it normally presumed Congress does not intend to
impose criminal liability on persons who, due to lack of knowledge, do
not have a wrongful mental state. Id. at 2198. The Court did not
13 The Court noted, however that the word “knowingly” did not modify
the statute’s jurisdictional element because jurisdictional elements do
not describe the evil Congress seeks to prevent, but rather simply ensure
the federal government has the constitutional authority to regulate the
defendant’s conduct. Id. at 2196 (citing Luna Torres v. Lynch, 578 U.S.
___, 136 S. Ct. 1619, 1630-31 (2016)).
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anticipate that proving a defendant’s knowledge of his status would be
burdensome, because “knowledge can be inferred from circumstantial
evidence.” Id.
The Court rejected the government’s argument that because
whether an alien was in the United States illegally was a question of law,
not fact, the well-known maxim “ignorance of the law is no excuse”
should therefore apply. Id. The Court explained:
This maxim, however, normally applies where a defendant
has the requisite mental state in respect to the elements of
the crime but claims to be “unaware of the existence of a
statute proscribing the conduct.” 1 W. LAFAVE & A. SCOTT,
SUBSTANTIVE CRIMINAL LAW § 5.1(a), p. 575 (1986). In
contrast, the maxim does not normally apply where a
defendant “has a mistaken impression concerning the legal
effect of some collateral matter and that mistake results in
his misunderstanding the full significance of his conduct,”
thereby negating an element of the offense. Ibid.; see also
Model Penal Code, § 2.04, at 27 (a mistake of law is a
defense if the mistake negates the “knowledge . . . required
to establish a material element of the offense”). Much of the
confusion surrounding the ignorance-of-the law maxim
stems from “the failure to distinguish [these] two quite
different situations.” LAFAVE, SUBSTANTIVE CRIMINAL LAW, §
5.1(d), at 585.
Rehaif, 139 S. Ct. at 2198.
The Court summarized that, in Rehaif, the defendant’s status as
an alien “illegally or unlawfully in the United States” referred to a legal
matter, but the legal matter was a collateral question of law. Id. A
defendant who does not know he is an alien “illegally or unlawfully in the
United States” does not have the guilty state of mind required by the
statute. Id. The Court therefore reversed the Eleventh Circuit and
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remanded for further proceedings. Id. at 2200. The Court concluded by
noting it expressed no view about what the government must prove to
establish a defendant’s knowledge of status in respect to other § 922(g)
provisions that were not at issue in Rehaif. Id.
In United States v. Hollingshed, 940 F.3d 410, 412 (8th Cir. 2019),
the defendant was convicted of being a felon in possession of a firearm in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Hollingshead
stipulated during the trial that he had a prior felony conviction, but, as
in Rehaif, the jury was not instructed that the government must prove
Mr. Hollingshead possessed a firearm and that he knew he belonged to
the relevant category of persons barred from possessing a firearm. Id. at
415. During the pendency of Mr. Hollingshead’s direct appeal, the
United States Supreme Court issued the Rehaif decision. Id.
The court began by stating that, in Rehaif, the Supreme Court
made clear it was expressing no view about what precisely the
government must prove to establish a defendant’s knowledge of status in
respect to other § 922(g) provisions that were not at issue in that case.
Hollingshed, 940 F.3d at 415, (citing Rehaif, 139 S. Ct. at 2200).
Mr. Hollingshed argued that, in light of Rehaif, there was insufficient
evidence to support his conviction or, in the alternative, the district
court’s failure to instruct the jury regarding his knowledge of his
previous felony conviction constituted reversible error. Hollingshed, 940
F.3d at 415. Because Mr. Hollingshed failed to challenge the lack of a
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jury instruction regarding his lack of knowledge of his felony conviction
status, the court reviewed his claim for plain error. Id.
Under this standard, the court found Mr. Hollingshed must show
(1) an error; (2) that was obvious; (3) that affected his substantial rights;
and (4) that seriously affected the fairness, integrity, or public reputation
of judicial proceedings. Id. (citing United States v. Olano, 507 U.S. 725,
734 (1993)).
The court acknowledged that, unlike Mr. Rehaif, Mr. Hollingshed
was a convicted felon. Id. Also, Mr. Hollingshed (like Mr. Sorensen) had
entered into a stipulation at trial that he had previously been convicted
of a crime punishable by imprisonment for a term exceeding one year.
Id. The court stated it would nevertheless “assume that Hollingshead’s
stipulation does not resolve the issue of whether he knew he was a
felon.” Id. Under that assumption, the court found, the absence of a
jury instruction requiring the jury to find Mr. Hollingshed knew he was a
felon was clear error under Rehaif. Id. (citing Griffith v. Kentucky, 479
U.S. 314, 321 n.6 (1987)) (providing Supreme Court decisions in criminal
cases apply to all cases pending on direct review). The court found
Mr. Hollingshed could not satisfy the third and fourth elements of the
Olano plain error test because, given his previous conviction, sentence,
and time spent in prison, those facts indicated Mr. Hollingshed knew he
had been convicted of a “crime punishable by imprisonment for a term
exceeding one year” when he possessed a firearm in 2015. Id. at 416.
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Therefore, he could not show a reasonable probability that but for the
error, the outcome of the proceeding would have been different.
Hollingshed, 940 F.3d at 416. Therefore, the failure to instruct the jury
to make such a finding did not affect Mr. Hollingshed’s substantial rights
or the fairness, integrity, or public reputation of the trial. Id. (citing
United States v. Benamor, 937 F.3d 1182, 1189 (9th Cir. 2019).14
Here, the parties agree that Rehaif applies to Mr. Sorensen’s
§ 2255 application. See Docket No. 41, p. 25. The government asserts
even applying Rehaif retroactively, there is no reason to vacate
Mr. Sorensen’s conviction.
During his 2016 trial, Mr. Sorensen, like Mr. Hollingshed,
stipulated to the fact of his previous felony conviction.15 Mr. Sorensen
14 In Benamor the defendant was also convicted of being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1). His case was
pending on appeal when Rehaif was decided. Mr. Benamor also
stipulated at trial that, on the date he was arrested for possessing the
firearm in question, he had been convicted of a crime punishable by
imprisonment for a term exceeding one year. Benamor, 937 F.3d at
1188. The court found no plain error in failing to instruct the jury that it
must find Mr. Benamor knew he was a convicted felon because, among
other reasons, Mr. Benamor had been convicted of several felonies in
which sentences of more than one year had actually been imposed upon
him. Id. at 1189.
15 During trial, rather than introduce evidence of Mr. Sorensen’s prior
felony conviction, a stipulation was read into evidence: “United States of
America vs. Shawn Russell Sorensen. Stipulation. United States of
America, by and through its attorney, and the Defendant, by and
through his attorneys, hereby stipulate and agree as follows: On or about
December 2, 2002, Shawn Russell Sorensen was convicted of a crime
punishable by imprisonment for a term exceeding one year. The parties
also agree that the stipulation may be received into evidence at trial
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now asserts, however, that he is entitled to a new trial under Rehaif
regardless of his stipulation. Mr. Sorensen now claims he believed his
gun rights had been restored. This is so, he says, because he had
obtained a hunting license from 2012-2015, his voting rights had been
restored in South Dakota, and he had a federal migratory waterfowl
stamp. Docket No. 35-4, ¶¶ 2-5.
In his brief, Mr. Sorensen cites 18 U.S.C. § 921(a)(20) in support of
his assertion that he believed his gun rights had been restored at the
time he possessed the firearm that was the subject of his 2016 federal
conviction. That statute states in relevant part:
(20) The term “crime punishable by imprisonment for a term
exceeding one year” does not include—
(A) any Federal or State offenses pertaining to antitrust
violations, unfair trade practices, restraints of
trade, or other similar offenses relating to the
regulation of business practices, or
(B) any State offense classified by the laws of the State
as a misdemeanor and punishable by a term of
imprisonment of two years or less.
What constitutes a conviction of such a crime shall be
determined in accordance with the law of the
jurisdiction in which the proceedings were held.16 Any
without any additional foundation or proof.” See Trial Exhibit 119, TT
(CR Docket No. 137), p. 399.
16 South Dakota law regarding possession of a firearm by a person
previously convicted of a felony states:
22-14-15.1. Possession of firearm by one with prior drug
conviction—Felony—Exception.
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conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil
rights restored shall not be considered a conviction for
purposes of this chapter, unless such pardon,
expungement, or restoration of civil rights expressly
provides that the person may not ship, transport,
possess, or receive firearms.
See 18 U.S.C. § 921(a)(20). Despite his current claim that he believed his
gun rights had been restored, the rationale of Hollingshed defeats
Mr. Sorensen’s Rehaif claim on the merits.
First, though the jury in Mr. Sorensen’s trial was not instructed
that the government needed to prove Mr. Sorenson knew he had
previously been convicted of a crime punishable by imprisonment for a
No person who has been convicted of a felony under chapter
22-42 or of a felony for a crime with the same elements in
another state may possess or have control of a firearm. A
violation of this section is a Class 6 felony. The provisions of
this section do not apply to any person who was last
discharged from prison, jail, probation, or parole, for a felony
under chapter 22-42 more than five years prior to the
commission of the principal offense and is not subject to the
restrictions in § 22-14-15.
Source: SL 1998, Ch. 130, § 2; SDCL, § 22-14-30; SL 2005,
Ch. 120, §§ 267, 268.
Recall that Mr. Sorensen’s 2002 conviction was a felony pursuant
to SDCL 22-42-5. See Docket No. 2-2. In his brief, Mr. Sorensen
concedes he was sentenced to prison for his 2002 conviction in 2002, but
was not finally discharged from parole for that violation until August of
2011. See Docket 35, p. 24 n.5. Therefore, not more than five years had
passed between the time he was “last discharged” from parole and the
time (May, 2016) when he possessed the firearm that is the subject of his
conviction in this case. Though he now claims he believed his gun rights
had been restored, he does not and cannot claim his rights actually had
been restored under South Dakota law.
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term exceeding one year, just like Mr. Hollingshed, Mr. Sorensen cannot
show that he did not actually know. Just like Mr. Hollingshed,
Mr. Sorensen entered into a stipulation stating that he had previously
been convicted of a crime punishable by imprisonment for a term
exceeding one year. Just like Mr. Hollingshed, Mr. Sorensen had entered
into a guilty plea as to that previous felony charge. See Docket 2-2. Just
like Mr. Hollingshed, Mr. Sorensen was actually sentenced to serve more
than one year in prison as a result of said previous felony conviction. Id.
And, just like Mr. Hollingshed, Mr. Sorensen served extra prison time as
a result of said conviction when his parole was later revoked. See PSR,
CR Docket No. 122, ¶ 46. See also, United States v. Cox, 796 F. App’x
322, 322-23 (8th Cir. 2020) (reaching the same conclusion as
Hollingshed because the defendant spent years in prison); United States
v. Welch, 951 F.3d 901, 907 (8th Cir. 2020) (same); United States v.
Coleman, 961 F.3d 1024, 1030 (8th Cir. 2020) (same); United States v.
Seltzer, 789 F. App’x 559, 561 (8th Cir. 2020) (same); United States v.
Crumble, 965 F.3d 642, 644-45 (8th Cir. 2020) (same).
The defendants in Coleman and Crumble made claims very similar
to the claim Mr. Sorensen makes here: that they believed their civil rights
had been “restored.” In each case, however, such a claim was
insufficient to prevail on the theory that the conviction should be vacated
pursuant to Rehaif.
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In Coleman, the defendant asserted he “may have” believed his
prior felony convictions had been expunged or his civil rights restored.
Coleman, 961 F.3d at 1030. The court found this claim insufficient to
vacate the conviction because the proper inquiry was simply whether the
defendant “knew he was a convicted felon at the relevant time.” Id.
In Crumble, the defendant argued that, based on 18 U.S.C.
§ 921(a)(20), he “could have reasonably believed” that a safe harbor
applied to him such that he no longer knew he had been convicted of a
crime punishable by imprisonment for a term exceeding one year.
Crumble, 965 F.3d at 645. The court rejected Mr. Crumble’s argument,
however, because Mr. Crumble
offer[ed] no evidence to show that was the case here. It was
Crumble’s burden to prove that his substantial rights were
affected by the Rehaif error. . . . Merely identifying a defense
theory—a possibility—is not sufficient to show a reasonable
probability of success without any evidence that the defense
theory would, in fact, apply in this case.
Crumble, 965 F.3d at 645.
As such, the court rejects Mr. Sorensen’s current claim that Rehaif
entitles him to relief because he mistakenly believed his gun rights had
been restored. The statute cited in Mr. Sorensen’s brief as support for
his claim is the same as in Crumble (18 U.S.C. § 921(a)(20)). If, as
Mr. Sorensen now asserts, at the time he possessed the firearm and,
more importantly, at the time of his trial in October, 2016, Mr. Sorensen
believed his civil rights had been restored under South Dakota law, then
his 2002 South Dakota conviction no longer fit the definition of a “crime
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punishable by imprisonment for a term exceeding one year.” But at his
2016 trial, Mr. Sorensen, without objection, stipulated the 2002
conviction met this definition.
Third, Mr. Sorensen seems to argue that Rehaif stands for the
proposition that his mistake about whether his gun rights had been
restored could negate the validity of his 2016 conviction under § 922(g)
and § 924(a)(2). But this idea has been soundly rejected by many
courts—including courts in this district and in the Eighth Circuit. As
recently as December 2019, it was addressed in United States v. Burning
Breast, No. 3:19-CR-30110, 2019 WL 6650474, at *3 (D.S.D. Dec. 6,
2019). In that case, the defendant was charged with being a felon in
possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2). Id. at *1. Mr. Burning Breast requested a jury instruction that
would have required the government to prove beyond a reasonable doubt
that he knew that his prior felony conviction prohibited him from
possessing firearms or that he could not reasonably believe his civil
rights had been restored. Id. The district court found the instruction
was an incorrect statement of the law, and refused to so instruct the
jury. Id. at *3.
In Burning Breast, the court explained that, after Rehaif, circuit
courts have interpreted §§ 922(g)(1) and 924(a)((2) to require the
government to prove that the defendant “knew he was a felon,” or “knew
that he had been ‘convicted’ of a crime ‘punishable by imprisonment for a
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term exceeding one year.’ ” Burning Breast, 2019 WL 6650474, at *2,
(quoting United States v Smith, 939 F.3d 612, 614 (4th Cir. 2019)). See
also United States v. Davies, 942 F.3d 871, 874 (8th Cir. 2019); United
States v. Benamor, 937 F.3d 1182, 1186, (9th Cir. 2019)).
But, the court further explained, Rehaif did not require the
government to prove the defendant knew that he was prohibited from
possessing a firearm—but rather only that he “knew he belonged to the
relevant category of persons barred from possessing a firearm.” Burning
Breast, 2019 WL 6650474 at *2 (quoting Rehaif, 139 S. Ct. at 2200). But
several courts have held the government does not need to prove the
defendant knew his status barred him from possessing a firearm. Id.
(citing United States v. Bowens, 938 F.3d 790, 797-98 (6th Cir. 2019);
United States v. Kueth, No. 8:18CR244, 2019 WL 6037078, at *1-2
(D. Neb. Nov. 14, 2019); United States v. Phyfier, No. 2:17cr482, 2019
WL 3546721, at *3 (M.D. Ala. Aug. 8, 2019); United States v. Gear,
No. 17-000742, 2019 WL 4396139 at *8 (D. Haw. Sept. 13, 2019)). And,
the court explained, the courts have also held that evidence a defendant
did not know he could not possess a firearm is irrelevant in a
prosecution under 18 U.S.C. § 922(g). Burning Breast, 2019 WL
6650474, at *2 (citing Phyfier, 2019 WL 3546721, at *3-4; United States
v. Collins, No. 5:18-cr-00068, 2019 WL 3432591, at *2-3 & n.2
(S.D. W. Va. July 30, 2019)).
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In Bowens, the defendants were convicted in May 2017 of
possessing firearms while being unlawful users of a controlled
substance. Bowens, 938 F.3d at 792. Their case was pending on appeal
when Rehaif was decided, and they argued on direct appeal that the
district court plainly erred by failing to instruct the jury that they must
have known they were unlawful users of a controlled substance in order
to be guilty of violating 18 U.S.C. § 922(g)(3). Id. at 796. The court
agreed that, in light of Rehaif, the lack of an instruction on the
defendants’ knowledge regarding this element may have been error. Id.
But, even assuming Rehaif applied, any error was not plain because the
defendants could not show that, but for the error, the result would have
been different. Id. at 797. This was because the jury heard evidence
that defendants were arrested with marijuana in their possession, and
defendants had posted pictures, comments and videos of themselves
using marijuana. Id.
The defendants, however, argued that, even if they knowingly used
marijuana, Rehaif required more—it required that the government prove
they knew they were prohibited from possession of a firearm because they
were users of unlawful substances. Id. In other words, that they knew
of their status as a prohibited person. Id. The court agreed that such a
jury instruction might have made a difference, because though it
“border[ed] on fantastical to suggest that defendants were unaware they
were smoking marijuana, or that marijuana was a controlled substance,
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it is at least plausible that they were unaware that they were prohibited
from possessing firearms under a subsection of 18 U.S.C. § 922(g) due to
their regular and repeated drug use.” Id.
The Bowens court rejected the defendants’ broad interpretation of
Rehaif, stating, “[s]uch knowledge however, is not, and cannot be, what
Rehaif requires.” Id. The defendants’ interpretation of Rehaif, the court
explained, ran headlong into the venerable maxim that ignorance of the
law is no excuse. Id. “Rehaif did not graft onto § 922(g) an ignorance-of-
the-law defense by which every defendant could escape conviction if he
was unaware of this provision of the United States Code.” Id. The
Bowens court explained it this way: Rehaif stands for the proposition
that the government arguably must prove defendants knew they were
unlawful users of a controlled substance, but not, as they argued, that
they knew unlawful users of controlled substances were prohibited from
using firearms under federal law. Id.
The Burning Breast court concluded that “[e]vidence that Burning
Breast either didn’t know the law prohibited him from possessing a
firearm or mistakenly thought himself exempt from the law would not
negate the requisite mental state and is not a defense.” Burning Breast,
2019 WL 6650474, at *3. The court explained it was an incorrect
statement of the law to place the burden on the government to show that
Mr. Burning Breast knew his civil rights had not been restored. Id. But,
“[o]f course, if [he] had a state felony conviction . . . [and] had his civil
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rights restored, then he would not have a qualifying felony conviction.”
Id. (citing United States v. Knapp, No. CR-19-03-H-CCL, 2019 WL
6493467, at *2-3 (D. Mont. Dec. 3, 2019)).
Knapp is significant here. In Knapp, the defendant was tried on
charges of being a felon in possession of a firearm in October 2019 (after
the Rehaif decision). The district court instructed the jury that the
government must prove the following elements beyond a reasonable
doubt: (1) the defendant knowingly possessed firearms; (2) the firearms
had been shipped from one state to another; (3) at the time the defendant
possessed the firearms the defendant had been convicted of a crime
punishable by imprisonment for a term exceeding one year; and (4) at the
time the defendant possessed the firearms he knew that he had been
convicted of a crime punishable by imprisonment for a term exceeding
one year. Id. at *2. Mr. Knapp was convicted at trial, and made a post-
trial motion for judgment of acquittal under FED. R. CRIM. P. 29(c). Id. at
*1.
Mr. Knapp disputed that he knew he had been convicted of a crime
punishable by imprisonment for a term exceeding one year. Id. He had
argued at trial and in his motion for judgment of acquittal that he did not
know he was a convicted felon because he believed his civil rights had
been restored following his release from prison. Id. at *2. At trial, the
court provided the jury the following Ninth Circuit model instruction to
explain the requirement that Mr. Knapp knew about his prior conviction:
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[A]n act is done knowingly if the defendant is aware of the
act and does not act through ignorance, mistake, or
accident. The government is not required to prove that the
defendant knew that his acts or omissions were unlawful.
You may consider evidence of the defendant’s words, acts, or
omissions, along with all the other evidence, in deciding
whether the defendant acted knowingly.
Id. at *2.
At Mr. Knapp’s request, the court also instructed the jury that any
“conviction that has been expunged, set aside, or for which a person has
been pardoned or had his civil rights restored shall not be considered a
conviction for purposes of a federal firearm violation, unless the pardon,
expungement, or restoration of civil rights expressly provides the person
may not possess firearms.” Id. Given all this, the court found the
government had sufficient evidence to support the jury’s finding as to the
fourth element. Id.
During its case-in-chief, the government had offered the parties’
stipulation that Mr. Knapp had prior convictions, along with testimony
from Special Agent Sprenger that the convictions were for felonies and
that Mr. Knapp was sentenced to terms of imprisonment for more than
one year. Id. The court found, therefore, the government offered
sufficient evidence to show Mr. Knapp knew he had been convicted of a
crime punishable by a term of imprisonment exceeding one year. Id.
After the government rested, Mr. Knapp testified. Id. at *3. He
explained it was his understanding that, after he was released from
prison, his civil rights, including his right to bear arms, had been
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restored. Id. He offered his discharge paperwork from the Colorado
Department of Corrections as a trial exhibit to support his claim. Id.
But, the court noted, the discharge from the Department of Corrections
made no mention of restoration of Mr. Knapp’s “civil rights.” It referred
only to Mr. Knapp’s unconditional discharge from the custody of the
Colorado Department of Corrections. Id. The court denied Mr. Knapp’s
motion for judgment of acquittal, and found the jury’s guilty verdict was
supported by sufficient evidence as to every element of the offense
charged. Id. See also United States v. Hoff, No. 14-cr-109, 2019 WL
5065134, at *2 (D. Minn. Oct. 9, 2019).
Mr. Hoff, like Mr. Sorensen, was convicted of being a felon in
possession of a firearm. Id. He filed a § 2255 motion, arguing his
conviction was invalid after Rehaif. Id. Mr. Hoff had pleaded guilty to
the felon in possession charge and, in the process, admitted he was a
convicted felon. Id. at *1. In fact, during his plea colloquy, he admitted
he had been convicted of multiple felonies that were punishable by more
than one year in jail. Id. In his § 2255 proceeding, however, Mr. Hoff
asserted his underlying conviction for being a felon in possession of a
firearm was invalid because, in reality, his civil rights had been restored.
Id. at *1. As a result, he argued, he did not possess the requisite mens
rea for the crime. Id.
In support of his argument, Mr. Hoff explained he had received a
letter from the Department of Corrections (DOC) before the date of his
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guilty plea restoring his civil rights. Id. Thus, he argued, his plea was
invalid because he was not in fact a felon at the time he pleaded guilty.
Id. The government could not have proven he knew he was a felon under
Rehaif, he argued, because he was not in fact a felon at the time of his
plea. Id. But the Hoff court, like the Knapp court, rejected these claims
because Mr. Hoff was mistaken about his restoration of civil rights. Hoff,
2019 WL 5065134, at *2. The DOC cannot restore a felon’s civil rights
under Minnesota law. Id. Instead, a court order is required to restore
those rights. Id. (citing Minn. Stat. § 609.165, subd. 1a). Because the
court found there could be “no question” that, under Minnesota law, a
court order was required to restore his civil rights and that he had
produced no such order, Mr. Hoff’s “bare-bones” allegation did not suffice
to establish a claim under § 2255. Id. The court concluded Mr. Hoff’s
plea colloquy established he had all the knowledge Rehaif required. Id.
at *1. That is, he knew he had been convicted of a crime punishable by
imprisonment of more than one year. Id.
The significance of Knapp and Hoff is that in neither case had the
defendant’s civil rights actually been restored. Therefore, in each case,
the defendant’s status as a previously convicted felon was unaffected.
That the defendant may have been mistaken or claimed to have been
mistaken about the operation of the underlying state law that could have
restored his civil rights was unavailing to his argument that he did not
know he had previously been convicted of a crime punishable by more
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than one year in prison. The same is true for Mr. Sorensen in this case.
The court respectfully recommends that the government’s motion to
dismiss Mr. Sorenson’s claim that his sentence was imposed in violation
of Rehaif v. United States, 139 S. Ct. 2191 (2019), be granted and the
claim dismissed.
G. A Limited Evidentiary Hearing is Warranted
“While ‘[a] petitioner is entitled to an evidentiary hearing on a
section 2255 motion unless the motion and the files and the records of
the case conclusively show that [he] is entitled to no relief,’ no hearing is
required ‘where the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is based.’ ” New
v. United States, 652 F.3d 949, 954 (8th Cir. 2011) (quoting Anjulo-Lopez
v. United States, 541 F.3d 814, 817 (8th Cir. 2008)).
“A district court may deny an evidentiary hearing where (1)
accepting the petitioner’s allegations as true, the petitioner is not entitled
to relief, or (2) ‘the allegations cannot be accepted as true because they
are contradicted by the record, inherently incredible, or conclusions
rather than statements of fact.’ ” Guzman-Ortiz v. United States, 849
F.3d 708, 715 (8th Cir. 2017) (quoting United States v. Sellner, 773 F.3d
927, 929-30 (8th Cir. 2014)).
Here, no evidentiary issue is warranted on any claim except
Mr. Sorenson’s claim that his Arizona conviction is not a predicate
offense under § 841(b)(1)(A) and the corresponding claim that counsel
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were ineffective for failing to raise this issue at the trial and appellate
levels. The court recommends an evidentiary hearing be held limited to
these two issues. The court recommends no evidentiary hearing be held
on any of Mr. Sorenson’s other claims. Mr. Sorensen’s other claims all
fail on the merits given the settled record before the court, or are
procedurally inaccessible. There are no issues of fact or credibility to be
determined as to these other claims.
CONCLUSION
Based on the foregoing law, facts and analysis, this magistrate
judge respectfully recommends that the government’s motion to dismiss
[Docket No. 26] be granted in part and denied in part. The court
recommends that all of Mr. Sorensen’s claims for relief be dismissed
except the claims that his Arizona conviction is not a proper predicate
offense under 21 U.S.C. §§ 841(b)(1)(A), 851, and 802(44) and that trial
and appellate counsel were ineffective for failing to raise this issue.
NOTICE OF RIGHT TO APPEAL
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. §
636(b)(1), unless an extension of time for good cause is obtained. See
FED. R. CIV. P. 72; 28 U.S.C. § 636(b)(1)(B). Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
Id. Objections must be timely and specific in order to require de novo
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review by the district court. Thompson v. Nix, 897 F.2d 356 (8th Cir.
1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).
DATED September 22, 2020.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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