United States District Court, D. New Mexico
PROPOSED FINDINGS OF FACT AND RECOMMENDED
Fashing CA United States Magistrate Judge.
MATTER comes before the Court on Benjamin Sosa's Motion
to Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc.
The Honorable Robert C. Brack referred this case to me to
recommend to the Court an ultimate disposition of the case.
Doc. 33. Having reviewed the submissions of the parties and
the relevant law, I recommend that the Court deny Sosa's
Background Facts and Procedural Posture
19, 2014, Sosa pled guilty to a two-count indictment.
See Docs. 23, 24. Count 1 of the indictment charged
Sosa with being a felon in possession of a firearm and
ammunition, and count 2 charged him with being a felon in
possession of ammunition, both in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). In his plea agreement,
Sosa agreed to waive his right to collaterally attack any
sentence the district court imposed, pursuant to 28 U.S.C.
§ 2255, “except on the issue of [his]
counsel's ineffective assistance in negotiating or
entering this plea or this waiver.” Doc. 23 at 6-7.
probation officer who prepared Sosa's presentence report
(“PSR”) determined that Sosa's base offense
level was 24 under USSG § 2K2.1(a)(2) because Sosa had
committed the offense after having sustained two felony
convictions for a crime of violence. PSR ¶ 15. Sosa
received a three-level reduction in his offense level under
USSG § 3E1.1 for acceptance of responsibility. PSR
¶¶ 22, 23. His total offense level was 21, and his
criminal history category was IV, which resulted in an
advisory guideline sentencing range of 57 to 71 months in
prison. Id. ¶¶ 24, 35, 53.
sentencing, because neither party objected to the PSR, the
Court adopted the PSR without change and found that
Sosa's guideline range was as reflected in the report.
Doc. 45 (9/23/2014 sentencing transcript) at 2. Sosa
requested a sentence of 57 months in prison. Id. at
3. The government requested a sentence of 64 months, based on
Sosa's two prior felony convictions. Id. at 6.
The Court imposed the sentence requested by the government
because Sosa had “repeatedly committed . . . these
offenses.” Id. at 7, 10. The Court ordered
that the sentence of 64 months for each count be served
concurrently, and also concurrent to the state sentence that
Sosa then was serving. Id. at 8. The Court noted
that Sosa had waived his right to appeal in his plea
agreement. Id. at 9.
Court entered the judgment reflecting this sentence on
September 29, 2014. Doc. 29. On June 23, 2016, Sosa filed his
Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255
and the Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015). Doc. 31.
Sosa's Claims and the Government's
argues that the Court violated his constitutional right to
due process when it sentenced him under the residual clause
of USSG § 4B1.2, as incorporated into USSG § 2K2.1.
Doc. 31 at 1. More specifically, he argues that because the
Supreme Court invalidated the residual clause of the Armed
Career Criminal Act (ACCA)-the part that increased a
defendant's statutory maximum sentence if the defendant
previously had been convicted of three violent felonies,
which included offenses that “otherwise involve
conduct that presents a serious potential risk of physical
injury to another, ” 18 U.S.C. § 924(e)(2)(B)(ii),
and because the sentencing guideline provision under which he
was sentenced has an identical residual clause, see
USSG §§ 2K2.1(a)(2) & comment. (n.1),
4B1.2(a)(2), his sentence is unconstitutional. See
Doc. 31 at 2-3. He also argues that the two prior convictions
that the Court found to be crimes of violence-the New Mexico
crimes of aggravated assault and armed robbery-do not qualify
as crimes of violence without reference to the now-invalid
residual clause. See Id . at 4-20.
response, the government argues that the Court should not
reach the merits of Sosa's argument because Sosa waived
his right to collaterally attack his sentence. See
Doc. 38 at 2-6. If, however, the Court reaches the merits,
the government argues that both of Sosa's prior felony
convictions still qualify as crimes of violence because they
have, as an element, “the use, attempted use, or
threatened use of physical force against the person of
another, ” USSG § 4B1.2. See Doc. 38 at
party addresses the issues that currently are pending before
the Supreme Court in Beckles v. United States, 616
F.App'x 415 (11th Cir. 2015), cert. granted, 136
S.Ct. 2510 (2016), although the government originally sought
to stay this case pending the Supreme Court's decision.
See Doc. 34. The issues before the Supreme Court
include: (1) Whether Johnson applies retroactively
to collateral cases challenging federal sentences enhanced
under the residual clause in USSG § 4B1.2(a)(2); (2)
Whether Johnson's constitutional holding applies
to the residual clause in USSG § 4B1.2(a)(2), thereby
rendering challenges to sentences enhanced under it
cognizable on collateral review; and (3) Whether mere
possession of a sawed-off shotgun, an offense listed as a
“crime of violence” only in the commentary to
USSG § 4B1.2, remains a “crime of violence”
after Johnson? Beckles was argued orally
before the Supreme Court on November 28, 2016. Sup. Ct. Dock.
Timeliness of Sosa's Motion
28 U.S.C. § 2255(a), a prisoner in federal custody may
move the court that sentenced him or her to vacate, set aside
or correct a sentence “imposed in violation of the
Constitution or laws of the United States.” The
prisoner must file his or her motion within one year of the
latest of four events. See 28 U.S.C. § 2255(f).
Because Sosa's conviction became final over a year before
he filed his petition, he relies on the only other applicable
provision, which requires the prisoner to file the motion
within one year of “the date on which the right
asserted was initially recognized by the Supreme Court, if
that right has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review.” See Doc. 31 at 3; 28 U.S.C. §
2255(f)(3). Sosa ...