United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE
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.
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.
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).
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
(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.
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.
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.
Standard of Review Under 28 U.S.C. § 2255
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