Opinion
CV 20-02508-PHX-DGC (ESW) CR 11-1622-005-PHX-DGC
09-29-2022
United States of America, Plaintiff/Respondent, v. Domingo Agustin-Simon, Defendant/Movant.
REPORT AND RECOMMENDATION
HONORABLE EILEEN S. WILLETT UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE DAVID G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE:
Pending before the Court is Domingo Agustin-Simon's (“Movant”) “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (the “Motion to Vacate”) (Doc. 24). The Government has filed a Response (Doc. 29) asserting that the Court should grant the Motion to Vacate. Movant has not filed a reply and the time to do so has passed.
Citations to “Doc.” are to the docket in CV 20-02508-PHX-DGC (ESW). Citations to “CR Doc.” are to the docket in the underlying criminal case, CR-11-1622-005-PHX-DGC.
I. BACKGROUND
In October 2012, a jury convicted Movant on the following five counts contained in the September 20, 2011 Superseding Indictment:
i. Count One: Conspiracy to Commit Hostage Taking, a Class A felony offense, in violation of 18 U.S.C. § 1203(a);
ii. Count Two: Hostage Taking and Aiding and Abetting, a Class A felony offense, in violation of 18 U.S.C. § 1203(a) and 2;
iii. Count Three: Bringing in Illegal Aliens and Aiding and Abetting, a Class C felony offense, in violation of 8 U.S.C. § 1324(a)(2)(B)(ii) and 2;
iv. Count Four: Harboring Illegal Aliens and Aiding and Abetting, a Class C felony offense, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii), (v)(II), and (B)(i); and v. Count Five: Using and Carrying a Firearm During and in Relation to a Crime of Violence and Aiding and Abetting, a Class A felony offense, in violation of 18 U.S.C. § 924(c)(1)(A) and 2.(CR Docs. 42, 329).
At the January 14, 2013 sentencing hearing, the Court sentenced Movant to (i) separate 35-year prison terms on Counts One and Two; (ii) separate 120-month prison terms on Counts Three and Four; and (iii) an 84-month prison term on Count Five. (CR Docs. 324, 329). The sentences on Counts Three and Four run concurrently with sentences on Counts One and Two. (CR Doc. 329 at 1). The sentence on Count Five runs consecutively to the sentences on the other counts. (Id.).
Movant appealed his convictions and sentences, which the Ninth Circuit Court of Appeals affirmed in November 2015. (CR Doc. 398). On August 10, 2016, Movant initiated a § 2255 proceeding in the District of Arizona under Case No. CV16-02715-DGC. After briefing was complete, the undersigned issued a Report and Recommendation recommending that relief be denied. Case No. CV16-02715-DGC, Doc. 18. The Court accepted the Report and Recommendation. Id., Doc. 47.
Movant subsequently filed in the Ninth Circuit Court of Appeals an application for authorization to file a second or successive motion under 28 U.S.C. § 2255 in the District Court. The Ninth Circuit granted the application and issued a Transfer Order. The Court received the Ninth Circuit's Transfer Order on May 25, 2022. (Doc. 25). However, pursuant to the Transfer Order, the Clerk of Court opened the instant case with the file date of June 12, 2020. (Id.). On June 6, 2022, the Court issued a Screening Order that required the Government to respond to the Motion to Vacate. (Doc. 27). The Government filed its Response (Doc. 29), which states that the Court should grant the Motion to Vacate. Movant did not file a Reply.
II. DISCUSSION
A. Legal Standards
Under 28 U.S.C. § 2255(a), a prisoner “in custody under sentence of a court established by Act of Congress” may move the sentencing court to vacate, set aside, or correct the sentence on the grounds 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.”
B. Analysis
Movant challenges the constitutionality of his conviction on Count Five (use of a firearm in a crime of violence in violation of 18 U.S.C. § 924(c)). Movant's § 924(c) conviction is predicated on the crime of hostage taking. (CR Doc. 42 at 5).
18 U.S.C. § 924(c) is a substantive criminal offense that sets forth mandatory sentences for defendants who “during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . . .” The term “crime of violence” is defined as:
an offense that is a felony and -
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.18 U.S.C. § 924(c)(3). Subsection A above is referred to herein as the “Elements/Force Clause.” Subsection B above is referred to herein as the “Residual Clause.”
Courts and parties refer to Subsection A of 18 U.S.C. § 924(c)(3) interchangeably as the “elements clause” or the “force clause.”
On June 24, 2019, the Supreme Court held that the Residual Clause of § 924(c) is unconstitutionally vague. United States v. Davis, 139 S.Ct. 2319 (2019). Despite the Residual Clause's unconstitutionality, Movant's § 924(c) conviction would be upheld if his predicate felony (hostage taking) is a “crime of violence” under the Elements/Force Clause.
Under 18 U.S.C. § 1203(a), a person commits a hostage taking if he “seizes or detains and threatens to kill, to injure, or to continue to detain another person in order to compel a third person or a governmental organization to do or abstain from doing any act as an explicit or implicit condition for the release of the person detained[.]”
The Government agrees with Movant's contention that hostage taking does not qualify as a crime of violence under the Elements/Force Clause in § 924(c)(3)(A) because the threat of continued detention can be accomplished without the use, attempted use, or threatened use of violent physical force. (Doc. 29 at 3-4). The undersigned concurs. See Rodriguez-Rios v. United States, No. CR-08-01442-004-SRB, 2020 WL 289504, at *2 (D. Ariz. Jan. 21, 2020) (stating that “hostage taking does not qualify as a crime of violence under the elements clause in § 924(c)(3)(A) because the threat of continued detention ‘can be accomplished without the use, attempted use, or threatened use of violent physical force”). Accordingly, it is recommended that the Court grant the Motion to Vacate (Doc. 24) and vacate Movant's conviction and sentence as to Count Five.
As to Movant's sentence, the Government correctly recounts that “[w]hen a defendant is sentenced on multiple counts and one of them is later vacated on appeal, the sentencing package becomes ‘unbundled.'” (Doc. 29 at 4) (quoting United States v. Ruiz-Alvarez, 211 F.3d 1181, 1184 (9th Cir. 2000)). The Court “then has the authority to put together a new package reflecting its considered judgment as to the punishment the defendant deserved for the crimes of which he was still convicted.” Ruiz-Alvarado, 211 F.3d at 1184 (internal quotation marks, alterations, and citations omitted). In light of the recommendation that the Court vacate Movant's § 924(c) conviction and sentence, the undersigned recommends that the Court resentence Movant on Counts One through Four, to be guided by a new calculation under the Sentencing Guidelines.
III. CONCLUSION
Based on the foregoing, IT IS RECOMMENDED that the Motion to Vacate (Doc. 24) be GRANTED.
IT IS FURTHER RECOMMENDED that the Court (i) vacate the portion of the Court's January 18, 2013 Judgment (CR Doc. 329) convicting Movant of violating Title 18, U.S.C. §924(c)(1)(A)(ii), Possessing, Using and Carrying a Firearm During and in Relations to a Crime of Violence, as charged in Count Five of the Superseding Indictment; (ii) hold a resentencing hearing on Counts One, Two, Three, and Four; and (iii) direct the Probation Department to prepare an updated presentence investigation report prior to the resentencing hearing.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have fourteen days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have fourteen days within which to file a response to the objections. Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003); Robbins v. Carey, 481 F.3d 1143, 1146-47 (9th Cir. 2007).