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Herrera v. United States

United States District Court, D. New Mexico

June 7, 2017

MARIANO HERRERA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

         THIS MATTER is before the Court under rule 4(b) of the Rules Governing Section 2255 Proceedings on the 28 U.S.C. § 2255 Motion to Vacate Sentence filed by Movant Mariano Herrera on June 24, 2016 (CV Doc. 1; CR Doc. 37). Herrera seeks to vacate and correct his sentence under Johnson v. United States, 578 U.S. __, 135 S.Ct. 2551 (2015). The Court determines that Herrera is not eligible for relief under Johnson and will dismiss the Motion.

         FACTUAL AND LEGAL BACKGROUND

         Herrera was indicted on October 9, 2013 for Armed Bank Robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d). (CR 13-03310 Doc. 10). The Indictment stated:

“On or about September 20, in Bernalillo County in the State and District of New Mexico, the defendant, Mariano H. Herrera, by force, violence, and intimidation, did take from the person and presence of another, approximately $2, 565.52 in money belonging to and in the care, custody, control, management and possession of the Wells Fargo Bank, . . . and in committing such offense, the defendant did assault and put in jeopardy the life of another person by use of a dangerous weapon, that is a firearm.”

(CR Doc. 10 at 1). In addition to the Armed Bank Robbery, Herrera was charged with Using, Carrying, and Brandishing a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A). (CR Doc. 10). Herrera pled guilty to the Indictment without a plea agreement on January 28, 2014. (CR Doc. 23). He was sentenced to 121 months of imprisonment followed by 5 years of supervised release. (CR Doc. 35).

         Herrera filed his 28 U.S.C. § 2255 Motion to Vacate Sentence (CV Doc. 1; CR Doc. 37). Herrera's Motion contends the ruling in Johnson extends to the residual clause of § 924(c) and that the Armed Bank Robbery offense does not qualify as a “crime of violence” and could not be used to enhance his sentence in light of Johnson. (CV Doc. 1 at 3-10; CR Doc. 37 at 3-10).

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

         Herrera seeks collateral review of his sentences in CR 13-03310 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 Herrera seeks collateral review more than a year after his sentence became final, he is relying 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 due process guarantee. 135 S.Ct. at 2562-2563. Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces an enhanced sentence 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 person of another; or
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of ...

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