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Sandoval v. United States

United States District Court, D. New Mexico

January 27, 2017

JOHNATHAN SANDOVAL, Plaintiff-Petitioner,
v.
UNITED STATES OF AMERICA, Defendant-Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Petitioner Johnathan Sandoval's Amended Motion to Vacate a Criminal Sentence Pursuant to 28 U.S.C. § 2255 (Johnson v. United States) (the “Motion”), (CV Doc. 6), filed September 9, 2016; and Respondent United States' Response to Defendant's Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 (the “Response”), (CV Doc. 11), filed December 23, 2017.[1] Petitioner has not filed a reply, and the time for doing so has passed. D.N.M.LR-Civ. 7.4(a). United States District Judge C. Leroy Hansen referred this case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (CV Doc. 3). After considering the parties' filings and the relevant law, the Court RECOMMENDS that Petitioner's Motion be DENIED.

         I. Background

         On May 20, 2013, Petitioner pled guilty to one count of being a felon in possession of ammunition, in violation of 18 U.S.C. §§ 922(g) and 924(a)(2). (CR Doc. 68). Pursuant to a plea agreement, the parties stipulated that Petitioner may have been an “armed career criminal” as defined by 18 U.S.C. § 924(e). (CR Doc. 67 at 2). If Petitioner was not an armed career criminal, he would have faced a maximum 120 month sentence. § 924(a)(2). If Petitioner was found to be an armed career criminal, he would have faced a minimum 180 month sentence. § 924(e)(1). Petitioner's pre-sentence report (“PSR”) determined that Petitioner was an armed career criminal based on Petitioner's numerous convictions for residential burglary in New Mexico. (CR Doc. 96-1 at 6-7). The PSR determined Petitioner's Guideline range was 188 to 235 months. (CR Doc. 96-1 at 20). Ultimately, Petitioner pled guilty pursuant to a Rule 11(c)(1)(C) plea agreement and stipulated to a 180 month sentence. (CR Doc. 67 at 5).

         A criminal defendant is deemed an armed career criminal if he has three prior convictions for “violent felonies.” § 924(e)(1). When Petitioner was sentenced, “violent felony” included any crime that “is burglary . . . or otherwise involves conduct that presents a serious potential risk of physical injury to another. § 924(e)(2)(B)(ii). The italicized clause is known as the “residual clause.” U.S. v. Johnson, 135 S.Ct. 2551, 2556 (2015). In Johnson, the United States Supreme Court held that the residual clause was unconstitutionally vague and may not be used to increase a criminal defendant's sentence. Id. at 2557.

         Following Johnson, Petitioner filed the instant Motion, challenging both his designation as an armed career criminal and his sentence. Petitioner argues his convictions for residential burglary do not qualify as the enumerated offense of “burglary” under § 924(e)(2)(B)(ii), therefore he was deemed an armed career criminal in reliance on the residual clause. (CV Doc. 4, 7-8). Because the residual clause is unconstitutional, Petitioner claims he is entitled to resentencing without being considered an armed career criminal. (CV Doc. 6 at 10).

         Respondent counters first with procedural arguments. Respondent argues that: (1) Petitioner waived his right to collaterally attack his sentence under § 2255; (2) Petitioner's motion is time-barred because Johnson is inapplicable to Petitioner's case; and (3) Petitioner forfeited his § 2255 claim when he pled guilty and agreed to serve 180 months. (CV Doc. 11 at 5-6). As for the merits of Petitioner's Motion, Respondent argues that “residential burglary” in New Mexico qualifies as “burglary” under § 924(e)(2)(B)(ii), therefore Petitioner was not deemed an armed career criminal in reliance on the residual clause. (Doc. 11 at 14-15).

         II. Standard of Review

         28 U.S.C. § 2255 provides that federal prisoners may challenge their sentences if: (1) their sentence was imposed in violation of the United States Constitution or federal law; (2) the sentencing court had no jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized sentence; or (4) the sentence is otherwise subject to collateral review. § 2255(a). If the court finds that a sentence infringed upon the prisoner's constitutional rights and is subject to collateral review, the court must vacate the sentence and discharge, resentence, or correct the sentence as the court believes appropriate. § 2255(b).

         III. Analysis

         a. Whether Petitioner has waived his right to file this Motion under § 2255

         The threshold issue the Court must address is whether Petitioner waived his right to file the instant Motion. Respondent argues Petitioner waived his right to collaterally attack his sentence in his plea agreement. (CV Doc. 11 at 6). Petitioner did not reply to this argument. Nonetheless, the Court will evaluate Respondent's argument.

         Petitioner's plea agreement includes a “Waiver of Appeal Rights.” (CR Doc. 67 at 9). The waiver states that Petitioner “knowingly waives the right to appeal [his] conviction(s) and any sentence . . . In addition, the [Petitioner] agrees to waive any collateral attack to [his] conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or waiver.” (CR Doc. 67 at 9). Petitioner has filed a motion under § 2255 challenging his sentence-not his conviction. (CV Doc. 6 at 1, 4, 11). The Motion repeatedly refers to Petitioner's sentence as an armed career criminal, but the Motion does not dispute the underlying conviction for possession of ammunition. (CV Doc. 6 at 1, 4, 11).

         A petitioner's waiver of his right to collateral attack under § 2255 “is generally enforceable where the waiver is expressly stated in the plea agreement.” U.S. v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). In the Tenth Circuit, courts perform a three-pronged analysis to determine the force of a waiver. U.S. v. Hahn,359 F.3d 1315, 1325 (10th Cir. 2004) (en banc) (per curiam). The Court must decide: (1) whether the challenged motion is within the scope of the waiver; (2) whether the movant knowingly and voluntarily agreed to the waiver; and (3) if enforcing the waiver would result in a miscarriage of justice. Id. The Court must “strictly construe[ ]” the waiver's scope, and “‘any ...


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