Opinion
Case No. 12-20153-02-CM (Criminal) Case No. 16-2471-CM (Civil)
01-17-2017
UNITED STATES OF AMERICA, Plaintiff, v. KARLA MONROY MURILLO, Defendant.
MEMORANDUM AND ORDER
This case is before the court on defendant Karla Monroy Murillo's motion "Seeking a Sentence Reduction Based on Johnson v. United States and Pursuant to 28 U.S.C. § 2255" (Doc. 174). Johnson held that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague. See 135 S. Ct. 2551, 2563 (2015).
Defendant pleaded guilty in 2013 to conspiring to distribute and possess with intent to distribute more than 50 grams of methamphetamine. In 2014, the court sentenced her to 65 months in prison. The court did not sentence defendant as a career offender under either the Armed Career Criminal Act or under U.S.S.G. § 4B1.1. In the absence of either of these determinations, Johnson does not apply. Cf. United States v. Jenkins, 613 F. App'x 754, 755 (10th Cir. 2015) (holding that Johnson did not apply for an enhancement that was not based on the residual clause of the Armed Career Criminal Act). This is true under the facts of this case regardless of the outcome of Beckles v. United States, No. 15-8544, which is now pending before the Supreme Court.
A certificate of appealability is not warranted in this case because reasonable jurists could not debate whether "the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotation marks and citation omitted).
IT IS THEREFORE ORDERED that defendant Karla Monroy Murillo's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 174) is denied.
IT IS FURTHER ORDERED that the court will not issue a certificate of appealability in this case.
Dated this 17th day of January, 2017, at Kansas City, Kansas.
s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge