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United States v. Urena-Hernandez

United States District Court, D. New Mexico

March 6, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
EDWIN VISMAR URENA-HERNANDEZ, Defendant/Movant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION [1]

          LOURDES A. MARTÍNEZ UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on Defendant/Movant's (hereinafter “Defendant”) Motion to Vacate a Criminal Judgment and Sentence Pursuant to 28 U.S.C. § 2255 (Johnson v. United States) [Doc. 1], [2] filed on June 25, 2016. Plaintiff/Respondent (hereinafter “the Government”) filed a response on September 29, 2016. [Doc. 5] Defendant did not file a reply and the time for doing so has passed. United States District Judge William P. Johnson referred the claims raised in this case to the undersigned for proposed findings and a recommended disposition, and a hearing, if necessary. [Doc. 2]. Having considered the motion, response, relevant law, and the record in this case and in Defendant's underlying criminal case contained in Case No. CR-11-670, the undersigned recommends, for the reasons set forth below, that Defendant's § 2255 motion [Doc. 1] and be DENIED and that this case be DISMISSED with prejudice.

         Factual and Procedural Background

         On June 13, 2011, pursuant to a Plea Agreement [Cr.Doc. 28], Defendant pled guilty to an Information [Cr.Doc. 25], which charged him with: (1) armed bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); and (2) carrying, possessing, and brandishing a firearm “during and in relation to and in furtherance of a crime of violence . . ., namely armed bank robbery, as charged in Count 1, ” in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Cr.Doc. 25 at 2). On November 21, 2011, Defendant was sentenced to a term of 30 months as to Count 1 and 84 months as to Count 2, with the terms to run consecutively for a total term of 114 months. [Cr.Doc. 42 at 2]. The Court also imposed a total term of 5 years of unsupervised release. Id. at 3.

         Discussion

         In his § 2255 motion, Defendant contends that his seven-year sentence for carrying a firearm during a crime of violence, in violation of 18 U.S.C. 924(c), is unconstitutional because armed bank robbery no longer qualifies as a crime of violence following the holding of Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson 2015”). [Doc. 1 at 1]. Specifically, Defendant contends that his sentence was improperly enhanced by seven years under § 924(c)(1)(A)(ii) because armed bank robbery, §§ 18 U.S.C. § 2113(a) and (d), does not qualify as a crime of violence under either the force clause of § 924(c)(3)(A) or the residual clause of § 924(c)(3)(B). See Id. at 1-2. Defendant contends that armed bank robbery is not a crime of violence under the force clause because it does not require proof of the use or threatened use of violent, physical force. Id. at 7. Defendant relies on Johnson v. United States, 559 U.S. 133, 140 (2010) (“Johnson 2010”), in which the Supreme Court held that the term “physical force” in the ACCA's force clause, § 924(e)(2)(B)(i), must be “strong physical force, ” “a substantial degree of force, ” or “violent force -- that is, force capable of causing physical pain or injury to another person.” See Id. In the alternative, Defendant contends that armed bank robbery cannot qualify as a crime of violence under the residual clause of § 924(c)(3)(B) because that clause is void for vagueness pursuant to the holding in Johnson 2015. See Id. at 9-10. Therefore, Defendant asks the Court to vacate his conviction for carrying a firearm during a crime of violence and resentence him absent that conviction. See Id. at 10.

         In response, the Government first contends that Defendant's conviction for armed bank robbery under 18 U.S.C. §§ 2113(a) and (d) satisfies the elements (or “force”) clause of § 924(c)(3)(A). See [Doc. 5 at 5-8]. The Government argues that armed bank robbery is a violent felony under the force clause because it “requires the intentional assault and placing in jeopardy the life of another with a deadly weapon.” Id. at 7. In the alternative, the Government contends that Defendant's enhanced sentence for armed bank robbery is still valid under § 924(c) because Johnson 2015 did not invalidate the residual clause of § 924(c)(3)(B). See Id. at 8-10. The Government contends that § 924(c)(3)(B) differs from the ACCA's residual clause in § 924(e)(2)(B)(ii) because § 924(c)(3)(B) does not contain “a list of enumerated crimes and an ‘otherwise' provision that introduces a residual clause, ” and because § 924(c)(3)(B) requires that force be used “in the course of committing the offense.” Id. at 9 (citations and internal quotation marks omitted). The Government also relies on several cases that have found that the Johnson 2015 decision does not apply to the residual clause of § 924(c)(3). See Id. at 10 (citing cases).

         Under the ACCA, an individual who violates § 922(g) (e.g., being a felon in possession of a firearm or ammunition), and who has “three previous convictions . . . for a violent felony or a serious drug offense, ” will receive a mandatory, minimum 15-year sentence. 18 U.S.C. § 924(e). The statute defines the term “violent felony” as:

[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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)(i)-(ii) (emphasis added). The emphasized clause is referred to as the “residual clause, ” and in Johnson 2015 the Supreme Court held that the residual clause “denies fair notice to defendants and invites arbitrary enforcement by judges, ” and, therefore, violates the due process clause of the Constitution. Johnson 2015, 135 S.Ct. at 2557.

         Defendant, however, did not receive an enhanced sentence under the ACCA. Instead, Defendant's sentence was enhanced under § 924(c), which mandates an enhanced sentence for “any person who, during and in relation to any crime of violence or drug trafficking crime . . ., uses or carries a firearm, or who, in furtherance of any such crime, possesses a ...


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