Opinion
CIVIL NO. 17-1409 (PAD) CRIMINAL NO. 13-083 (PAD)
2020-03-17
Guillermo SANTOS-CORTIJO, Petitioner, v. UNITED STATES of America, Respondent.
Jessica Earl, Federal Public Defender, San Juan, PR, for Petitioner. Mariana E. Bauza, United States Attorneys Office, San Juan, PR, for Respondent.
Jessica Earl, Federal Public Defender, San Juan, PR, for Petitioner.
Mariana E. Bauza, United States Attorneys Office, San Juan, PR, for Respondent.
OPINION AND ORDER
Delgado-Hernández, District Judge.
Before the court is petitioner's "Motion to Correct Sentence Under 28 U.S.C. § 2255" (Docket No. 1), which the government opposed (Docket No. 15). For the reasons explained below, the motion is DENIED and the case DISMISSED.
I. BACKGROUND
On February 7, 2013, petitioner was charged in a 4-count Indictment with two counts of aiding and abetting a carjacking, in violation of 18 U.S.C. § 2119(1) and 2, and two counts of aiding and abetting in the use of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) and 2 (Crim. No. 13-083, Docket No. 16). On May 14, 2013, he pled guilty to counts 1, 3, and 4 (Crim. No. 13-083, Docket No. 42). On September 19, 2013, he was sentenced to 37 months of imprisonment as to counts 1 and 3 to be served concurrently with each other, and 87 months of imprisonment as to count 4, to be served consecutively, for a total of 124 months of imprisonment, followed by 3 years of supervised release as to counts 1 and 3 and 5 years as to count 4, to be served concurrently with each other (Crim. No. 13-083, Docket No. 72). Judgment was entered on September 25, 2013 (Id. at Docket No. 73). Petitioner did not file an appeal. Instead, he presented the motion to correct sentence under 28 U.S.C. § 2255 (Civil No. 17-1409, Docket No. 1), which the government opposed (Civil No. 17-1409, Docket. No. 15).
The court also imposed a special monetary assessment of $300.00 and dismissed count 2 (Crim. No. 13-083, Docket No. 72).
II. STANDARD OF REVIEW
Pursuant to Section 2255, "[a] prisoner in custody under sentence of a court established by [an] Act of Congress ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). "[T]he statute provides for post-conviction relief in four instances, namely, if the petitioner's sentence (1) was imposed in violation of the Constitution, (2) was imposed by a court that lacked jurisdiction, (3) exceeded the statutory maximum, or (4) was otherwise subject to collateral attack." David v. United States, 134 F.3d 470, 474 (1st Cir. 1998) (citing Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (construing statute)). Claims that do not allege constitutional or jurisdictional errors are properly brought under Section 2255 only if the claimed error is a defect which "fundamentally results in a complete miscarriage of justice" or "an omission inconsistent with the rudimentary demands of fair procedure." Id. at 474.
III. DISCUSSION
Petitioner claims that his 18 U.S.C. § 924(c) conviction is invalid under Johnson v. United States (Johnson II ), 576 U.S. 591, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (Civil No. 17-1409, Docket No. 1). He argues that Johnson II, which struck down the residual clause of the Armed Career Criminal Act ("ACCA") due to vagueness, invalidates the similarly worded residual clause of Section 924(c)(3)(B)(Civil No. 17-1409, Docket No. 1). To this way of thinking, the "crime of violence" charge alongside the Section 924(c) violation – aiding and abetting carjacking – fails to categorically qualify as a crime of violence under the statute's "force clause," 18 U.S.C. § 924(c)(3)(A) (Civil No. 17-1409, Docket No. 1). And he states that without 924(c)’s residual clause, he is not guilty of count 4, and by extension, that his conviction and sentence on that count must be vacated. Id.
For context, the ACCA provides for enhanced penalties for defendants with three qualifying prior felony convictions for either serious drug offenses or violent felonies. The ACCA defines a "violent felony" as a crime punishable by imprisonment for a term exceeding one year "that (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii).
The underlined portion is known as the ACCA's "residual clause." United States v. Holloway, 630 F.3d 252, 256 (1st Cir. 2011). In Johnson II, 135 S.Ct. at 2563, the Supreme Court determined that the residual clause is unconstitutionally vague because its application is too "wide-ranging" and "indeterminate," and that imposing an increased sentence under it violates the Constitution's guarantee of due process. In Welch v. United States, 578 U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), it held that Johnson II announced a new substantive rule that applies retroactively to cases on collateral review. But Johnson II does not apply here.
Section 924(c)(1)(A), pursuant to which petitioner was convicted, prohibits the possession of a firearm in furtherance of a "crime of violence" or a drug trafficking crime. Section 924(c)(3) defines "crime of violence" 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 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)(B). The first of these two clauses is known as the "force clause." United States v. Rose, 896 F.3d 104, 106 (1st Cir. 2018).
Petitioner was convicted and sentenced under the provision of 18 U.S.C. § 924(c), which pertains to the use of a firearm during and in relation to a carjacking. To this end, Section 2119 defines carjacking as, "[W]hoever, with the intent to cause death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received in interstate or foreign commerce from the person or presence of another by force and violence or by intimidation, or attempts to do so ..." 18 U.S.C. § 2119.
In Johnson v. United States (Johnson I ), 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010), the Supreme Court held that to qualify as a "crime of violence" under the force clause, an offense must have as an element the use, attempted use, or threatened use of a violent physical force "that is, force capable of causing physical pain or injury to another person." Id. at 140, 130 S.Ct. 1265 (2010). And in United States v. Cruz-Rivera, 904 F.3d 63, 66-67 (1st Cir. 2018) (cert. denied , ––– U.S. ––––, 139 S.Ct. 1391, 203 L.Ed.2d 623 (2019) ), the First Circuit concluded that the federal offense of carjacking categorically qualifies as a crime of violence under the force clause of section 924(c).
Other circuits addressing this question after Johnson I have reached the same conclusion. See, United States v. Gutierrez, 876 F.3d 1254, 1257 (9th Cir. 2017) ; United States v. Evans, 848 F.3d 242, 247-48 (4th Cir. 2017) ; United States v. Jones, 854 F.3d 737, 740-41 (5th Cir. 2017) ; Ovalles v. United States, 861 F.3d 1257, 1267-69 (11th Cir. 2017).
In this light, the offense of carjacking in violation of 18 U.S.C. § 2119 for which petitioner was convicted and sentenced is categorically a "crime of violence" under the force clause of Section 924(c)(3)(A). As neither petitioner's conviction nor his sentence rests upon the residual clause of Section 924(c)(3)(B), Johnson II does not apply to the circumstances of his case. Therefore, petitioner's request that his conviction and sentence as to count 4 be vacated under Johnson II must be denied.
IV. CONCLUSION
For the reasons stated, petitioner's motion under 28 U.S.C. § 2255 is DENIED and the case DISMISSED. Judgment shall be entered accordingly.
V. CERTIFICATE OF APPEALABILITY
Pursuant to Rule 1(a) of the "Rules Governing Section 2255 Proceedings for the United States District Courts", "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The court may issue a certificate of appealability upon "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) ; Jennings v. Stephens, 574 U.S. 271, 135 S.Ct. 793, 802, 190 L.Ed.2d 662 (2015). No such showing has been made in the present case. Thus, the court will not issue a Certificate of Appealability. Petitioner may still seek a certificate directly from the First Circuit Court under Federal Rule of Appellate Procedure 22(b)(1).