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United States v. Lopez-Aguilar

United States District Court, D. New Mexico

May 18, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,


         THIS MATTER is before the Court under rule 4(b) of the Rules Governing Section 2255 Proceedings on the Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255 filed by Movant Marvin Lopez-Aguilar on June 24, 2016 (CV Doc. 1; CR Doc. 460). Lopez-Aguilar seeks to vacate and correct his sentence under Johnson v. United States, 578 U.S.___, 135 S.Ct. 2551 (2015). The Court determines that Lopez-Aguilar is not eligible for relief under Johnson and accordingly dismisses the Motion.


         Lopez-Aguilar was indicted on multiple counts of conspiracy to commit interference and interference with interstate commerce by robbery, using and carrying a firearm during and in relation to a crime of violence, felony murder, and illegal alien in possession of firearms. (CR Doc. 70). In pertinent part, the Second Superseding Indictment stated:

Count 3 On or about June 20, 2009, in Bernalillo County, in the District of New Mexico, the defendant[ ], Marvin Lopez-Aguilar . . . did unlawfully obstruct, delay and affect commerce, as that term is defined in Title 18, United States Code, Section 1951, and the movement of articles and commodities in such commerce by robbery, as that term is defined in Section 1951, in that defendant[ ] did unlawfully take and obtain personal property consisting of United States currency from the presence of Jacob Marshall and Jimmie Eaton, then employed by Denny's Restaurant, against their will by means of actual and threatened force, violence, and fear of injury to their person, that is, the defendant[ ] threatened them with a firearm. In violation of 18 U.S.C. §§ 1951(a) and 2.”

(CR Doc. 70 at 3). More specifically, on June 20, 2009, at approximately 9:41in the morning, three masked and armed men (Defendant Lopez-Aguilar along with Francisco Melgar-Carbrera and Jose “Tito” Melgar-Cabrera) entered the Denny's to commit a robbery. During the course of the robbery, a waitress, Stephanie A., was shot and killed by Defendant Lopez-Aguilar. Mr. Marshall, the Denny's manager, observed that the men had assault rifles and a revolver. He heard one of the men “cock” the rifle, and tell everyone to get down. Mr. Marshall saw Lopez-Aguilar fall as he was running toward the kitchen. When Lopez-Aguilar fell, his firearm went off. Lopez-Aguilar got back to his feet, placed his firearm to Mr. Marshall's head, and walked Mr. Marshall back into the kitchen to his office. Mr. Marshall saw Stephanie A. lying in a pool of blood. Mr. Marshall and Lopez-Aguilar were then joined by another male with an assault rifle. The two men forced Mr. Marshall to open the Denny's safe. One of the gunmen emptied the safe. Mr. Marshall was then led from the office and covered by another gunmen while the others took as much as they could from the safe. Before the gunmen fled, they took Mr. Marshall's cell phone.

         On September 30, 2011, Lopez-Aguilar entered into a rule 11(c)(1)(C) Plea Agreement in which he pled guilty to Count 3 (Hobbs Act robbery) and Count 4 (felony murder) of the Second Superseding Indictment. (CR Doc. 175). Lopez-Aguilar's sentence was enhanced under 18 U.S.C. § 924(c) and he was sentenced to a term of imprisonment of 40 years. (CR Doc. 276 at 3).

         Lopez-Aguilar filed his Motion under 28 U.S.C. § 2255 on June 24, 2016. (CV Doc. 1; CR Doc. 460). At issue in this § 2255 proceeding is the § 924(c) enhancement based on the Hobbs Act robbery conviction and Lopez-Aguilar does not challenge the felony murder conviction. Lopez-Aguilar 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 element/force clause of § 923(c)(A). (CV Doc. 1 at 4-11; Cr Doc. 460 at 4-11).


         Lopez-Aguilar seeks collateral review of his sentences in CR 09-02962 WJ 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 Lopez-Aguilar seeks collateral review more than a year after his sentences became final, he relies on the right newly recognized by the Supreme Court in Johnson and made retroactively applicable to cases on collateral review in 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 2562-63. 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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