United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
AND LEGAL BACKGROUND
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).
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).
LAW ON JOHNSON V. UNITED STATES AND SECTION 2255 COLLATERAL
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).
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 ...