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United States v. Sosa

United States District Court, D. New Mexico

December 2, 2016

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
BENJAMIN SOSA, Defendant/Movant.

          PROPOSED FINDINGS OF FACT AND RECOMMENDED DISPOSITION

          Laura Fashing CA United States Magistrate Judge.

         THIS MATTER comes before the Court on Benjamin Sosa's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255. Doc. 31.[1] 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 motion.

         I. Background Facts and Procedural Posture

         On June 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.

         The probation officer who prepared Sosa's presentence report (“PSR”) determined that Sosa's base offense level was 24 under USSG[2] § 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.

         At 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.

         The 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.

         II. Sosa's Claims and the Government's Response

         Sosa 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.

         In 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 6-18.

         Neither 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. No. 15-8544.

         III. Discussion

         A. Timeliness of Sosa's Motion

         Under 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. ยง 2255(f)(3). Sosa ...


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