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United States v. Castillo

United States District Court, D. New Mexico

March 10, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
PERMANUEL CASTILLO, 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 Correct Sentence Pursuant to 28 U.S.C. § 2255 [Doc. 1], [2] filed on June 21, 2016. Plaintiff/Respondent (hereinafter “the Government”) filed a response on August 29, 2016 [Doc. 6], and Defendant filed a reply on December 13, 2016 [Doc. 13]. United States District Judge Judith C. Herrera referred the claims raised in this case to the undersigned for proposed findings and a recommended disposition, and a hearing, if necessary. [Doc. 14]. Having considered the motion, response, reply, relevant law, and the record in this case and in Defendant's underlying criminal case contained in Case No. CR-12-2836, the undersigned recommends, for the reasons set forth below, that Defendant's § 2255 motion [Doc. 1] DENIED and that this case be DISMISSED with prejudice.

         Factual and Procedural Background

         On April 13, 2013, pursuant to a Plea Agreement [Cr.Doc. 31], Defendant pled guilty to Count 3 of an Indictment [Cr.Doc. 14], which charged him with: (1) Assault with a Dangerous Weapon, in violation of 18 U.S.C. §§ 1153 and 113(a)(3);[3] (2) Assault Resulting in Serious Bodily Injury, in violation of 18 U.S.C. §§ 1153 and 113(a)(6); and (3) Use of a Firearm During a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). As part of the plea agreement, Defendant waived his appeal rights. See [Doc. 31 at 6]. The waiver reads, in its entirety:

The Defendant is aware that 28 U.S.C. § 1291 and 18 U.S.C. § 3742 afford a Defendant the right to appeal a conviction and the sentence imposed. Acknowledging that, the Defendant knowingly waives the right to appeal the Defendant's conviction(s) and any sentence, including any fine, within the statutory maximum authorized by law, as well as any order of restitution entered by the Court. In addition, the Defendant agrees to waive any collateral attack to the Defendant's conviction(s) and any sentence, including any fine, pursuant to 28 U.S.C. §§ 2241 or 2255, or any other extraordinary writ, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

Id. On October 23, 2013, Defendant was sentenced to a term of 120 months as to Count 3, and Counts 1 and 2 were dismissed on the motion of the United States. [Cr.Doc. 39 at 1-2]. The Court also imposed a total term of 5 years of supervised release. Id. at 3.

         Discussion

         In his § 2255 motion, Defendant contends that his 120-month sentence for use of a firearm during a crime of violence, in violation of 18 U.S.C. 924(c), is unconstitutional because his predicate offenses of assault with a deadly weapon and assault resulting in serious bodily injury no longer qualify as crimes of violence following the holding of Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson 2015”). [Doc. 1 at 2-3]. Defendant first contends that his waiver of collateral review in his plea agreement does not bar his § 2255 motion because “[t]he government may choose not to enforce a stipulation by which the defendant forfeits his right to contest his sentence through a collateral petition.” Id. at 3. Defendant contends that “enforcing a waiver entered before an unanticipated sea change in the sentencing law which would keep [Defendant] incarcerated beyond the applicable guideline sentence of the predicate crimes” would result in a miscarriage of justice. Id. at 4. Defendant also contends that, “since [he] was sentenced under a provision of law declared by the United States Supreme Court to be unconstitutionally vague, his sentence would be illegal.” Id.

         Second, Defendant contends that the predicate crimes of assault with a deadly weapon and assault resulting in serious bodily injury do not qualify as crimes of violence under either the elements, or force, clause of § 924(c)(3)(A) or the residual clause of § 924(c)(3)(B). See Id. at 4-11. Defendant contends that these offenses do not meet the definition of “crime of violence” under the force clause because they do not require proof of the use, attempted 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” (citations omitted). See [Doc. 1 at 6-7]. Defendant contends that his predicate offenses “do not address how the bodily harm is to be carried out.” Id. at 7. Specifically, Defendant argues that the elements of these statutes would be satisfied if a defendant mails a package containing anthrax to the mailroom of a large office because serious bodily injury could result from contact with the package, and that “[s]imilarly, it would be sufficient for a defendant to deliver polonium-210 via a cup of tea” because, “while a polonium-laced cup of tea is certainly a dangerous weapon, . . . possibly causing serious injury or death, ” the action of brewing, pouring, and sipping it “falls short of the type of activity associated with ‘violence [sic] force.'” Id. at 8. Finally, Defendant contends that assault with a deadly weapon and assault resulting in serious bodily injury cannot qualify as crimes 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 8-11. Therefore, Defendant asks the Court to vacate his conviction and 120-month sentence. See Id. at 11.

         In response, the Government first contends that Defendant's challenge to his conviction is procedurally barred because he failed to raise the claim in a direct appeal. See [Doc. 6 at 3-5]. The Government contends that Defendant cannot establish cause for failing to raise his claims earlier because he accepted the plea agreement and waived his right to collaterally attack his conviction, and he did not file a timely appeal on this issue. See Id. at 4. The Government further contends that Defendant cannot establish prejudice or claim actual innocence because his claim under Johnson 2015 lacks substantive merit. See Id. at 5. In addition, the Government contends that the decision in Johnson 2015 does not impact Defendant's conviction because it does not apply to the residual clause of § 924(c)(3) (see Id. at 5-11), and, even if it did, the predicate offenses of assault with a dangerous weapon and assault resulting in serious bodily injury are both crimes of violence under § 924(c)'s force clause (see Id. at 11-16). Finally, the Government moves to enforce the appellate waiver in the plea agreement. See Id. at 16-22. The Government contends that: (1) Defendant's appeal falls within the scope of the waiver (id. at 18); (2) Defendant knowingly and voluntarily waived his appeal rights (id. at 19-22); and (3) enforcing the waiver would not result in a miscarriage of justice because the waiver is not unlawful (id. at 22).

         In reply, Defendant contends that his claim is not procedurally barred because, at the time of his sentencing, the Supreme Court had ruled twice that the residual clause of the ACCA was not unconstitutionally vague, so Defendant can establish cause for failing to raise the issue on direct appeal. See [Doc. 13 at 2-3]. Defendant further contends that he is prejudiced by his sentence “because the invalidation of the residual clause of the ACCA, and by extension the invalidation of the materially indistinguishable residual clause of § 924(c), leaves [Defendant] convicted under an unconstitutional statute.” Id. at 3. Defendant also contends that he is actually innocent of the charge under § 924(c) because “Johnson [2015] invalidates § 924(c)'s residual clause and [Defendant's] charges of assault with a dangerous weapon and assault resulting in serious bodily injury do not fall within the force clause.” Id. at 3-4. Defendant continues to argue that the holding of Johnson 2015 applies to the residual clause of § 924(c)(3)(B) (id. at 4-7), and that the crimes of assault with a dangerous weapon and assault resulting in serious bodily injury are not crimes of violence under the force clause of § 924(c)(3)(A) (id. at 7-11). Finally, Defendant contends that the appellate waiver in the plea agreement should not be enforced because it will result in a miscarriage of justice because, while Defendant's sentence “did not exceed the statutory maximum, it was a dramatic increase over the otherwise applicable guideline range, ” and because Defendant was sentenced under a provision of law that has since been found to be unconstitutional. Id. at 12.

         A. Procedural Default

         The Government contends that Defendant's challenge to his conviction is procedurally barred because he failed to raise the claim in a direct appeal, and he cannot show cause excusing his default and actual prejudice, or that a miscarriage of justice will occur if his claim is not addressed. See [Doc. 6 at 3-5]. Generally, if a defendant fails to raise an issue on direct appeal, he is barred from raising it in a § 2255 motion “unless he can show cause excusing his procedural default and actual prejudice resulting from the errors of which he complains, or can show that a fundamental miscarriage of justice will occur if his claim is not addressed.” United States v. Hollis, 552 F.3d 1191, 1193-94 (10th Cir. 2009) (citation and internal quotation omitted). However, the procedural default doctrine does not bar a defendant from raising a claim for the first time on collateral review when “the factual or legal basis for a claim was not reasonably available to counsel” at the time a direct appeal was or could have been filed. Murray v. Carrier, 477 U.S. 478, 488 (1986). Thus, when the factual or legal basis for a claim was not reasonably available, but later becomes available, that change in circumstances can constitute cause for a procedural default.

         Prior to Johnson 2015, Defendant's contention that the residual clause of § 924(c) is unconstitutionally vague was unavailable, absent an overruling by the Supreme Court of its precedent. See Sykes v. United States, 564 U.S. 1, 15 (2011) (holding that the residual clause of the ACCA “states an intelligible principle and provides guidance that allows a person to conform his or her conduct to the law”) (citation and internal quotation marks omitted). Because Johnson 2015 provided a legal basis for Defendant's claim that was not previously available, the Court finds that Defendant has shown cause for his procedural default. The Court further finds that Defendant has established prejudice. To establish prejudice, a defendant must show that there is a reasonable probability that, without the alleged error, the result of the proceedings would have been different. See Strickler v. Greene, 527 U.S. 263, 289 (1999). Here, Defendant and the Government entered into a plea agreement wherein Defendant pled guilty to use of a firearm during two crimes of violence -- assault with a dangerous weapon and assault resulting in serious bodily injury. See [Cr.Doc. 31]. This agreement was based on the parties' understanding that the two predicate crimes were “crimes of violence” under § 924(c). However, if, as Defendant contends, those crimes no longer meet the definition of “crime of violence” pursuant to the holding in Johnson 2015, then Defendant's plea and sentence are based on a legal error, and the outcome of the proceedings would have been different but for this alleged error. Accordingly, the Court finds that Defendant has shown cause and prejudice sufficient to overcome his failure to file a direct appeal challenging his sentence, and his § 2255 motion is not barred by procedural default.

         B. Waiver of Collateral Attack

         Next, the Court addresses the Government's contention that the waiver in the plea agreement of Defendant's right to collaterally attack his conviction and sentence should be enforced. See [Doc. 6. at 16-22]. “[A] waiver of collateral attack rights brought under § 2255 is generally enforceable where the waiver is expressly stated in the plea agreement and where both the plea and the waiver were knowingly and voluntarily made.” United States v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). An exception is made if enforcement of the waiver would result in a miscarriage of justice, which occurs only “[1] where the district court relied on an impermissible factor such as race, [2] where ineffective assistance of counsel in connection with the negotiation of the waiver renders the waiver invalid, [3] where the sentence exceeds the statutory maximum, or [4] where the waiver is otherwise unlawful.” United States v. Hahn, 359 F.3d 1315, 1327 (10th Cir. 2004) (citations omitted). “This list is exclusive: enforcement of an appellate waiver does not result in a miscarriage of justice unless enforcement would result in one of the four situations enumerated above.” United States v. Polly, 630 F.3d 991, 1001 (10th ...


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