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United States v. Ybarra

United States District Court, D. New Mexico

February 15, 2017



         THIS MATTER comes before the Court on Defendant Martin Michael Ybarra's (“Defendant's”) Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255.[1] Doc. 1. Defendant seeks to have his conviction and sentence set aside pursuant to the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (Johnson II), which invalidated the residual clause of the Armed Career Criminal Act (“ACCA”) as unconstitutionally vague under the Fifth Amendment Due Process Clause.[2] The Court has satisfied itself that Defendant's Motion is limited to only matters of law, and its disposition requires no further factual development or evidentiary hearing. Having reviewed the pleadings and record before the Court, as well as the relevant law, the Court recommends that Defendant's § 2255 Motion be denied.

         I. Background

         On June 24, 2008, pursuant to a Plea Agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), Defendant pled guilty to an Indictment charging him with being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). CR Doc. 17 & 18. According to Defendant's Presentence Report, his base offense level was determined to be 33, because he was found to qualify as an armed career criminal under the ACCA. Doc. 2, Ex. 1 ¶ 48. After a three-level reduction for acceptance of responsibility, his total offense level was calculated at 30. Id. ¶ 49-51. With a criminal history category of V and the ACCA's fifteen-year mandatory minimum of incarceration, his guideline range became 180-188 months. Id. ¶ 98-99.

         According to the Presentence Report, Defendant qualified as an armed career criminal based upon three prior convictions in the United States District Court for the District of California for federal bank robbery in case number CR 87-0373. Doc. 2, Ex. 1 ¶¶ 36, 48, 68. Defendant had also previously been convicted of aggravated assault with a deadly weapon, id. ¶ 36, but his Presentence Report suggests that it was his federal bank robbery convictions alone that qualified him as an armed career criminal. Id. ¶ 48.

         The indictment issued in Defendant's 1987 District of California federal bank robbery case, attached to the Government's response brief, reveals that Defendant was charged with nine counts of federal bank robbery in violation of 18 U.S.C. § 2113(a). See Doc. 7, Ex. 1. Each count charged him with federal bank robbery “by force, violence, and intimidation.” Doc. 7, Ex. 1 at 1-9 (emphasis added). According to the judgment issued by the United States District Court for the District of California, Defendant ultimately pled guilty to Counts 1, 2, and 3 of the indictment and was sentenced to eighteen years custody as to each count to be served concurrently. Doc. 7, Ex. 2.

         In the instant case, Defendant entered into a Plea Agreement on June 24, 2009, in which he and the Government agreed, pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) and U.S.S.G. § 6B1.2(c)(2), that “the appropriate sentence in this case is 180 months.” CR Doc. 17 at 4. Defendant agreed in his Plea Agreement to waive his right to appeal or to collaterally attack his conviction under § 2255, except on the issue of ineffective assistance of counsel. CR Doc. 17 at 5. While the language of the Agreement does not explicitly mention application of the ACCA, the parties do expressly acknowledge in the Agreement that Defendant was subject to “imprisonment for a period of not less than fifteen (15) years nor more than life.” CR Doc. 17.

         On April 13, 2010, the Honorable Martha Vazquez of this District accepted the parties' Plea Agreement and sentenced Defendant to the stipulated sentence of 180 months imprisonment. CR Doc. 21. The Court filed its Judgment in this case on April 21, 2010. See CR Doc. 22. Defendant, having waived his right to do so, did not appeal his sentence. See CR Doc. 17 at 5.

         The instant Motion is Defendant's first attempt to collaterally attack his sentence. Initially, he argued that his predicate offenses for “three prior California state convictions for bank robbery, ” were “likely classified as violent felonies by the district court under the unconstitutionally vague residual clause of the definition of ‘violent felony, 18 U.S.C. § 924(2)(2)(B)(ii).[']” Doc. 1 at 1-3. After the Government clarified in its response brief that the relevant predicate offenses were convictions for federal bank robbery under 18 U.S.C. § 2113(a), Defendant revised his argument in his reply brief to comport with the Presentence Report. See Doc. 9. Defendant now argues that following the invalidation of the Act's residual clause, federal bank robbery, 18 U.S.C. § 2113(a), is categorically not a violent felony under the ACCA. See id.

         II. Discussion

         A. The ACCA

         The ACCA provides that a person convicted of violating § 922(g) who has three prior convictions for a “violent felony” or “serious drug offense” is subject to a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e)(1). Prior to the demise of the residual clause in Johnson II, the ACCA defined “violent felony” as follows:

any 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) (emphasis added to denote the now-invalidated residual clause). Subpart (i) of § 924(e)(2)(B) is often referred to as its “force clause, ” while the initial, unitalicized portion of subpart (ii) is known as the “enumerated clause.” See Johnson, 135 S.Ct. at 2556. It is the final italicized clause within subpart (ii) that the Supreme Court found to be unconstitutionally vague in Johnson II. See id. at 2557, 2563. Notably, the Court left intact both the force clause and the enumerated clause.

         In Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court announced that Johnson II applies retroactively to ACCA cases on collateral review, reasoning that the decision announced a new substantive rule. Id. at 1264-65. As a result, individuals whose predicate convictions qualified as “violent felonies” under only the ACCA's invalidated residual clause are now entitled to relief under 28 U.S.C. § 2255. In contrast, those individuals whose predicate offenses qualify as “violent felonies” under either the ACCA's force clause or enumerated clause are not entitled to relief.

         Here, the Government insists that Defendant's federal bank robbery convictions are violent felonies under the ACCA's force clause - that is, these offenses have “as an element the use, attempted use, or threatened use of physical force against the person of ...

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