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United States v. Sedillo

United States District Court, D. New Mexico

March 6, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RAYMOND ELOY SEDILLO, Defendant.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         This matter is before the Court, sua sponte under rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, on Defendant Raymond Eloy Sedillo's § 2255 motion, filed on June 29, 2016, and Motion In Response To Government's Order To Show Cause, filed on October 31, 2016. [CV Docs. 5, 10; CR Docs. 94, 98] Defendant is incarcerated and proceeding pro se. For the following reasons, the Court concludes that Defendant's Motion In Response To Government's Order To Show Cause complies with the prisoner mailbox rule and, therefore, finds that Defendant's § 2255 motion was timely filed on June 21, 2016. The Court further concludes that Defendant plainly is not entitled to relief on his § 2255 motion because Defendant's prior New Mexico convictions for residential burglary and aggravated battery with a deadly weapon qualify as violent felonies under § 924(e)(2)(B), without reference to the residual clause invalidated in Johnson v. United States, 135 S.Ct. 2551 (2015). Therefore, Defendant's § 2255 motion will be dismissed with prejudice, a certificate of appealability will be denied, and judgment will be entered.

         I. BACKGROUND

         Defendant was charged, in a Superseding Indictment, with: Counts 1 and 8 - felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1), 924(e); Counts 2 and 9 - possession with intent to distribute cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B), 841(b)(1)(C); Count 3 - possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1); Count 4 - attempted interference with commerce by threats or violence in violation of 18 U.S.C. § 1951; Counts 5, 6, and 7 - discharge of a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1); and Count 10 - possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C). [CR Doc. 14] In particular, with respect to Count 8 of the Superseding Indictment, Defendant was charged as follows:

On or about April 3, 2003, in Bernalillo County, District of New Mexico, the defendant RAYMOND ELOY SEDILLO aka Rey Sedillo, having been convicted of crimes punishable by imprisonment for a term exceeding one year, specifically: (1) Residential Burglary, Second Judicial District, State of New Mexico, Criminal Cause 82-34842; (2) Receiving a Stolen Vehicle, Second Judicial District Court, State of New Mexico, Criminal Cause 84-36922; (3) Residential Burglary, Larceny (over $100), and Conspiracy to Commit Larceny (over $100), Second Judicial District Court, State of New Mexico, Criminal Cause 84-37644; (4) Escape from Inmate Release Program, Thirteenth Judicial District Court, State of New Mexico, Cause VA-85-21-CR; (5) Aggravated Battery (Deadly Weapon), Second Judicial District Court, State of New Mexico, Criminal Cause 90-01844; (6) Auto Burglary, Second Judicial District Court, State of New Mexico, Criminal Cause 96-1523; (7) Receiving or Transferring a Stolen Vehicle, Second Judicial District Court, State of New Mexico, Criminal Cause CR 96-02189; and (8) Receiving or Transferring a Stolen Vehicle, Second Judicial District court, State of New Mexico, Criminal Cause CR 97-02894, did knowingly possess in and affecting commerce a firearm, specifically, a Taurus .45 ACP Revolver, serial number VH970768, five rounds of Speer .45 caliber ammunition, and seven rounds of Winchester S&W .40 caliber ammunition.
In violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e).

[CR Doc. 14 at 5]

         Defendant and the Government entered into a plea agreement, in which Defendant agreed to plead guilty to Count 8 of the Superseding Indictment-felon in possession of a firearm (Armed Career Criminal) in violation of 18 U.S.C. §§ 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e), and Defendant and the Government agreed, pursuant to rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure that “a sentence of imprisonment for a period of 180 months (15 years) is the appropriate disposition of this case and shall be the sentence imposed.” [CR Doc. 43 at 37]

         Defendant admitted to the factual basis for his plea, including the fact that he already had been convicted of the following felony offenses:

(1) Residential Burglary, Second Judicial District Court, State of New Mexico, Criminal Cause 82-34842; (2) Receiving a Stolen Vehicle, Second Judicial District Court, State of New Mexico, Criminal Cause 84-36922; (3) Residential Burglary, Larceny (over $100), and Conspiracy to Commit Larceny (over $100), Second Judicial District Court, State of New Mexico, Criminal Cause 84-37644; (4) Escape from Inmate Release Program, Aggravated Battery (Deadly Weapon), Second Judicial District Court, State of New Mexico, Criminal Cause 90-01844; (6) Auto Burglary, Second Judicial District Court, State of New Mexico, Criminal Cause 96-1523; (7) Receiving or Transferring a Stolen Vehicle, Second Judicial District Court, State of New Mexico, Criminal Cause CR 96-02189; and (8) Receiving or Transferring a Stolen Vehicle, Second Judicial District Court, State of New Mexico, Criminal Cause CR 97-02894.

[CR Doc. 43 at 4]

         The Probation Office prepared a Presentence Investigation Report (PSR), which determined that Defendant was an Armed Career Criminal pursuant to 18 U.S.C. § 924(e), because of the following three prior violent felony convictions:

1) On February 17, 1984, the defendant was convicted of Count 1: Residential Burglary (Felony); Count 2, Larceny (Over $100) (Felony); and Count 3, Conspiracy (To Commit Larceny) (Felony), in the Second Judicial District Court, Albuquerque, New Mexico, Case No. CR-1983-37644. Count 1 is a second degree felony, with a penalty of nine years imprisonment.
2) On July 29, 1985, the defendant was convicted of Escape from an Inmate Release Program, in the Thirteenth Judicial District Court, Los Lunas, New Mexico, Case Number VA-85-21. This offense is a fourth degree felony with a penalty of eighteen months imprisonment.
3) On March 1, 1991, the defendant was convicted of Aggravated Battery with a Deadly Weapon, in the Second Judicial District Court, Albuquerque, New Mexico, Case Number CR-1990-01844. This offense is a third degree felony, with a penalty of three years imprisonment.

[PSR at 12] Because Defendant was an Armed Career Criminal, his offense level was determined to be 34 under the United States Sentencing Guidelines (U.S.S.G.), § 4B1.4. Defendant received a three-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of 31. [PSR at 12] Based on Defendant's criminal history points, the PSR determined that Defendant was in criminal history category VI. [PSR at 32] A total offense level of 31 and a criminal history category of VI resulted in a guideline imprisonment range of 188 to 235 months. [PSR at 40]

         On June 24, 2008, the Court accepted Defendant's guilty plea, accepted the plea agreement, and adopted the findings in the PSR. [CR Doc. 58] Consistent with the 11(c)(1)(C) plea agreement, the Court sentenced Defendant to a term of 180 months imprisonment, to run consecutively to the sentences imposed in the Second Judicial District Court, County of Bernalillo, Albuquerque, New Mexico, Case Numbers CR-2002-02283, CR-2003-01104; and CR-2004-02924. [CR Doc. 59] The Court rendered judgment on Defendant's conviction and sentence on June 28, 2008. [CR Doc. 59] Defendant did not file a notice of appeal.

         On April 3, 2009, Defendant filed a Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By a Person in Federal Custody [CR Doc. 63], followed by an Amended § 2255 Motion on April 22, 2009 [CR Doc. 65]. On March 9, 2010, the Court denied Defendant's § 2255 claims as meritless, entered final judgment, and denied a certificate of appealability. [CR Docs. 83, 84, 85]

         On March 29, 2016, Defendant filed a letter requesting the appointment of counsel, because he believed he “may be entitled to relief under the Johnson Residual Clause, based on the priors used to enhance [his] sentence by 5 years.” [CV Doc. 1; CR Doc. 88] Attorney Margaret A. Katze, Assistant Federal Public Defender, was appointed to represent Defendant in accordance with the Administrative Order In the Matter of: Representation in Johnson v. U.S., 576 U.S. __, 135 S.Ct. 2551 (2015) Cases, 16-MC-00004-19 (Doc. 19) (D.N.M. March 25, 2016).

         On May 18, 2016, Defendant's counsel, Attorney Katze, filed in the United States Court of Appeals for the Tenth Circuit an Application To File Second Petition Pursuant to 28 U.S.C. § 2255, alleging that the enhancement of Defendant's sentence under the ACCA was unconstitutional in light of Johnson. See In re: Sedillo, No. 16-2097, Doc. 01019622798 (10th Cir. May 18, 2016). On May 23, 2016, the Tenth Circuit granted Defendant's request for “authorization to file a second or successive § 2255 motion in the district court to raise a claim based on Johnson v. United States.” [CV Doc. 3; CR Doc. 91]

         On June 29, 2016, the Tenth Circuit docketed a pro se Application For Authorization to File a Second or Successive Motion Under 28 U.S.C. § 2255 filed by Defendant, which was dated June 21, 2016. [CV Doc. 5; CR Doc. 94] The Tenth Circuit noted that Defendant already had been granted authorization to file a second or successive § 2255 motion asserting a claim for relief under Johnson, but that “[i]t does not appear . . . that Sedillo has filed a § 2255 motion in the district court since [the] grant of authorization.” [CV Doc. 5-1; CR Doc. 93] The Court held that Defendant's “pro se motion for authorization [was] duplicative and unnecessary, ” but directed the Clerk of the Court to:

transfer Sedillo's pro se authorized successive § 2255 motion-specifically, his filings docketed in this case on June 29, 2016, and July 19, 2016-to the district court for the District of New Mexico. The filing date for the authorized § 2255 motion is the earlier of 1) the date Sedillo's pro se motion for authorization was filed in this court, or 2) the date his pro se motion for authorization was delivered to prison authorities for mailing, if the district court determines that Sedillo is entitled to the benefit of the prison mailbox rule, see Price v. Philpot, 420 F.3d 1158, 1165-66 (10th Cir. 2005); Fed. R. App. P. 25(a)(2)(C).

[CV Doc. 5-1; CR Doc. 93] On September 22, 2016, Defendant, proceeding pro se, supplemented his ยง 2255 motion with documents previously requested by the ...


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