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Gutierrez v. United States

United States District Court, D. New Mexico

June 27, 2017

ANTHONY GUTIERREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court upon Petitioner Anthony Gutierrez' 28 U.S.C. § 2255 Amended Motion to Vacate Sentence (“Motion”), (CV Doc. 7), filed September 8, 2016; Respondent United States' Response to Defendant's Amended Motion to Vacate Sentence (“Response”), (CV Doc. 12), filed December 22, 2016; and Petitioner's Reply re Response to § 2255 Petition (“Reply”), (CV Doc. 16), filed January 20, 2017.[1]

         United States District Judge William P. Johnson referred this case to Magistrate Judge Carmen E. Garza to perform legal analysis and recommend an ultimate disposition. (CV Doc. 18). After considering the parties' filings, the record of the case, and relevant law, the Court RECOMMENDS that Petitioner's 28 U.S.C. § 2255 Amended Motion to Vacate Sentence, (CV Doc. 7) be DENIED, and that this case be DISMISSED WITH PREJUDICE.

         I. Background

         On January 26, 2012, a grand jury returned an indictment charging Petitioner with: (1) Conspiracy to Commit Interference with Interstate Commerce by Robbery, in violation of 18 U.S.C. § 1951(a); (2) Interference with Interstate Commerce by Robbery and Violence, in violation of 18 U.S.C. § 1951(a), and Aiding and Abetting, in violation of 18 U.S.C. § 2; (3) Using, Carrying and Possessing a Firearm During and in Relation to and in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c), and Aiding and Abetting, in violation of 18 U.S.C. § 2; and (4) Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (CR Doc. 2). On November 21, 2012, Petitioner pled guilty pursuant to a Fed.R.Civ.P. 11(c)(1)(C) plea agreement to Counts 3 and 4 of the indictment. (CR Doc. 66 at 2). Petitioner's presentence report (“PSR”) provided that Petitioner was subject to a minimum 84-month sentence for Count 3, and an advisory guideline range of an additional 46 to 57 months for Count 4. (CV Doc. 12 at 2). In the plea agreement, the parties stipulated to a sentence of 96 months. (CR Doc. 66 at 4). On March 27, 2013, Petitioner was sentenced to 84 months as to Count 3, and 12 months as to Count 4, with the terms to run consecutively for a total sentence of 96 months imprisonment. (CR Doc. 90 at 3).

         Section 924(c) mandates an enhanced sentence for “any person who, during and in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm.” § 924(c)(1)(A). A “crime of violence” is defined in this statute as:

[A]n offense that is a felony and--
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

§ 924(c)(3)(A)-(B).

         In his Motion, Petitioner contends that his 84-month mandatory sentence under § 924(c) for use of a firearm during a crime of violence is unconstitutional. (CV Doc. 7 at 2). Specifically, Petitioner argues that his predicate offenses of robbery and conspiracy under § 1951(a) (the “Hobbs Act”) are no longer “crimes of violence” following the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Id. at 3. While the Supreme Court in Johnson struck down the Armed Career Criminal Act's (“ACCA”) residual clause, 18 U.S.C. 924(e)(2)(B)(ii), as unconstitutionally vague, Petitioner contends that the residual clause of § 924(c)(3)(B) “is materially indistinguishable from the ACCA residual clause.” Id. at 6. In addition, Petitioner contends that Hobbs Act robbery and conspiracy do not qualify as crimes of violence under § 924(c)(3)(A)'s force clause. Id. at 7-16. Therefore, Petitioner argues that there is no legal basis for his § 924(c) conviction, and he asks the Court to dismiss Count 3 of the indictment and resentence him. Id. at 17.

         In response, Respondent first argues that Petitioner waived his right to collaterally attack his convictions. (CV Doc. 12 at 2-7). Respondent further contends that the holding in Johnson does not apply to § 924(c) because the residual clauses in § 924(c) and the ACCA are substantially different. Id. at 7-11. Finally, Respondent argues that Hobbs Act robbery, Petitioner's predicate offense, is a crime of violence under § 924(c)(3)(A)'s force clause, without resort to § 924(c)(3)(B)'s residual clause. Id. at 11-15.

         II. Standard of Review Under 28 U.S.C. § 2255

         Section 2255 provides that a federal prisoner may challenge his sentence if: (1) it was imposed in violation of the United States Constitution or federal law; (2) the sentencing court had no jurisdiction to impose the sentence; (3) the sentence exceeded the maximum authorized sentence; or (4) the sentence is otherwise subject to collateral review. 28 U.S.C. § 2255(a). If the court finds that a sentence infringed upon the prisoner's constitutional rights and is subject to collateral ...


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