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United States v. Rojas

United States District Court, D. New Mexico

March 6, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
DANIEL ROJAS, Defendant-Movant.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court under rule 4(b) of the Rules Governing Section 2255 Proceedings on the Motion to Set Aside the Judgment and Correct the Sentence Pursuant to 28 U.S.C. § 2255 filed by Movant Daniel Rojas on June 24, 2016 (CV Doc. 1; CR Doc. 42). Rojas seeks to vacate and correct his sentence under Johnson v. United States, 578 U.S.__, 135 S.Ct. 2551 (2015). The Court determines that Rojas is not eligible for relief under Johnson and will dismiss the Motion.

         FACTUAL AND LEGAL BACKGROUND

         Rojas was indicted on August 23, 2005 on five counts: Count 1 and Count 3-18 U.S.C. § 1951(a)(1) Interference with Commerce by Threats or Violence; Count 2 and Count 4-18 U.S.C. § 924(c)(1)(A)(ii) Using and Carrying a Firearm During and in Relation to a Crime of Violence; and Count 5-18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) Felon in Possession of a Firearm and Ammunition. (CR Doc. 16). The Superceding Indictment stated:

Count 3 On or about 1st day of July, 2005, in Bernalillo County, State and District of New Mexico, the defendant, Daniel Rojas, did unlawfully obstruct, delay and affect, and attempt to obstruct, delay and affect, commerce . . .by robbery as that term is defined in Section 1951, in that the defendant did unlawfully take and obtain personal property consisting of cash form the presence of Emad Al-Sultan, who was operating the Better Deal Auto Sales, against his will by means of actual and threatened force, violence, and fear of injury, immediate and future, to his person, that is, by shooting him with a firearm at the Better Deal Auto Sales.”
Count 4 On or about the 1st day of July, 2005, in Bernalillo County, State and District of New Mexico, the defendant, Daniel Rojas, did use and carry a firearm, that is, a pistol, during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, namely Interference with Commerce by threats and violence as charge in Count 3 of this Indictment. . .”

(CR Doc. 16 at 2-3). On February 2, 2006, Rojas entered into a rule 11(c)(1)(C) Plea Agreement in which he pled guilty to Counts 3 and 4 of the Superceding Indictment and agreed to a 24-year term of imprisonment. (CR Doc. 32 at 2-3). Rojas was then sentenced to the agreed term of imprisonment of 24 years. (CR Doc. 40).

         Rojas filed his Motion under 28 U.S.C. § 2255 on June 24, 2016. (CV Doc. 1; CR Doc. 42). Rojas contends that Johnson invalidates the residual clause of 18 U.S.C. § 924(c)(3)(B) and that Hobbs Act robbery is not a crime of violence as defined in the elements or force clauses of § 923(c). (CV Doc. 1 at 4-17; Cr Doc. 42 at 4-17).

         APPLICABLE LAW ON JOHNSON V. UNITED STATES AND SECTION 2255 COLLATERAL REVIEW

         Rojas seeks collateral review of his sentences in CR 07-02238 and CR 08-03048 under 28 U.S.C. § 2255. Section 2255 provides:

“A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

28 U.S.C. § 2255(a). Because Rojas seeks collateral review more than a year after his sentences became final, he relies on a right newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review in Johnson and Welch v. United States, 578 U.S.__, 136 S.Ct. 1257 (2016). See 28 U.S.C. § 2255(f)(3).

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is impermissibly vague and imposing an increased sentence under the residual clause of 18 U.S.C. § 924(e)(2)(B) violates the Constitution's guarantee of due process. 135 S.Ct. at 2562-2563. Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a “violent felony.” 18 U.S.C. § 924 (e)(2)(B). The Act defines “violent felony” to mean:

“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 ...

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