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Sarracino v. United States

United States District Court, D. New Mexico

June 27, 2017

PETER ALLEN SARRACINO, 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 on Petitioner Peter Allen Sarracino's 2255 Motion to Vacate Illegal Career Offender Sentence Under Johnson v. United States (the “Motion”), (CV Doc. 1), [1] filed June 27, 2016; Petitioner's Brief in Support of Motion to Vacate Illegal Career Offender Sentence Under Johnson v. United States (Doc. 1 (the “Supplemental Brief”), (CV Doc. 11), filed April 15, 2017; Respondent United States of America's Brief in Opposition to Defendant-Petitioner's Motion to Vacate Illegal Career Offender Sentence Under Johnson v. United States (the “Response”), (CV Doc. 12), filed May 4, 2017; and Petitioner's Reply Brief in Support of Motion to Vacate Illegal Career Offender Sentence Under Johnson v. United States (Doc. 1) (the “Reply”), (CV Doc. 13), filed May 25, 2017.

         Petitioner moves the Court to vacate his sentence and resentence him, arguing his sentence as a “career offender” violates his Constitutional right to due process under the Supreme Court of the United States' decision in Johnson v. United States, 135 S.Ct. 2551 (2016). (CV Doc. 1 at 1). After considering the parties' filings and the relevant law, the Court concludes that Johnson retroactively applies to the mandatory Sentencing Guidelines, but that the sentencing court correctly considered Petitioner a career offender because second degree murder, assault with a dangerous weapon, and voluntary manslaughter are “crimes of violence.” The Court therefore RECOMMENDS that Petitioner's Motion be DENIED.

         I. Background

         On January 16, 1996, a jury found Petitioner guilty of kidnapping in violation of 18 U.S.C. § 1201 and of second-degree murder in violation of 18 U.S.C. § 1111(a). (CR Docs. 96, 97). Petitioner's presentence report (“PSR”) concluded Petitioner was a “career offender” based on Petitioner's prior convictions for assault with a dangerous weapon in violation of federal law and voluntary manslaughter in violation of New Mexico law. (CV Doc 1 at 2; CV Doc. 12 at 2).[2] Petitioner ultimately received concurrent life sentences. (CR Doc. 127).

         When Petitioner was sentenced, the United States Sentencing Guidelines (“U.S.S.G” or “Guidelines”) defined a “career offender” in part as a defendant who had an underlying conviction and at least two prior convictions for “crimes of violence.” U.S.S.G. § 4B1.1 (1995). The Guidelines further defined “crime of violence” as any federal or state criminal felony that fell within three clauses: (1) if the offense “has as an element the use, attempted use, or threatened use of physical force against the person of another” (the “elements clause”); (2) if the offense is “burglary of a dwelling, arson, or extortion” (the “enumerated offense clause”); or (3) if the offense “otherwise involves conduct that presents a serious potential risk of physical injury to another” (the “residual clause”). Id. § 4B1.2(1)(i)-(ii).

         On June 27, 2016, Petitioner filed the instant Motion, arguing his sentence violates his Constitutional rights following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2016). The Supreme Court held in Johnson that the residual clause in the Armed Career Criminal Act (“ACCA”), which is identical to the residual clause in § 4B1.2, was unconstitutionally vague and may not be used to impose an increased sentence. Johnson, 135 S.Ct. at 2563. Although the Supreme Court recently held that Johnson was inapplicable to the advisory Guidelines, Petitioner argues Johnson applies to his case because the Guidelines were mandatory when he was sentenced. Finally, Petitioner contends neither his underlying or prior convictions qualify as crimes of violence except under the residual clause. Therefore, he argues, he is entitled to be resentenced without being considered a career offender.

         Respondent counters that Johnson is inapplicable to either the advisory or mandatory Guidelines. Further, Respondent argues, if Johnson applies to the mandatory Guidelines, it only applies prospectively rather than retroactively, so Petitioner is still not entitled to relief. Lastly, Respondent claims that even if Johnson applies retroactively to the mandatory Guidelines, voluntary manslaughter and assault with a dangerous weapon are crimes of violence, so Petitioner was properly deemed a career offender.

         Thus, the issues before the Court are: whether Johnson applies to the mandatory Sentencing Guidelines; whether Johnson applies retroactively or prospectively; and whether Petitioner's crimes are crimes of violence under § 4B1.2 absent the residual clause.

         II. Analysis

         a. Review under 28 U.S.C. § 2255

         28 U.S.C. § 2255 provides that prisoners in federal custody may challenge their sentences if: (1) their sentence 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. § 2255(a). Here, Petitioner claims his sentence was imposed in violation of the United States Constitution. If the Court finds that a sentence infringed Petitioner's constitutional rights and is subject to collateral review, the Court must vacate the sentence and discharge, resentence, or correct the sentence as the Court believes appropriate. § 2255(b).

         b. Whether Johnson applies to the pre-Booker, mandatory Guidelines

         The first issue before the Court is whether Johnson applies to the mandatory Guidelines. As explained above, the Supreme Court in Johnson held that the residual clause of the ACCA is unconstitutionally vague. Johnson, 135 S.Ct. 2551, 2557. The ACCA's residual clause “both denies fair notice to defendants and invites arbitrary enforcement from judges.” Id. The Johnson Court discussed the fractured and confusing jurisprudence interpreting the residual clause, stating “this Court's repeated attempts and repeated failures to craft a principled and objective standard out of the residual clause confirm its hopeless indeterminacy.” Id. at 2558; see id. at 2559-60 (discussing lower courts' efforts to make sense of the residual clause).

         In Beckles, the Supreme Court considered whether Johnson applied to the residual clause in § 4B1.2 of the advisory Guidelines. Beckles, 137 S.Ct. at 890. The Supreme Court squarely answered “no, ” holding that the advisory Guidelines are not subject to vagueness challenges. Id. In so holding, the Beckles Court did not find that the residual clause in § 4B1.2 was clear and unambiguous. Rather, the Court reasoned that, “[b]ecause they merely guide the district courts' discretion, the Guidelines are not amenable to vagueness challenges.” Id. at 894. Unlike the ACCA, which is a law, the advisory Guidelines “do not implicate the twin concerns underlying vagueness doctrine- providing notice and preventing arbitrary enforcement.” Id. at 894. First, regarding notice, “even perfectly clear Guidelines could not provide notice to a person who seeks to regulate his conduct” because judges retain broad discretion to increase a defendant's sentence. Id. Second, the Guidelines do not invite arbitrary enforcement, they simply “advise sentencing courts how to exercise their discretion within the bounds established by Congress.” Id. at 895.

         However, as the Beckles Court acknowledged, the Guidelines were not always advisory. Id. at 894. The Guidelines were initially mandatory, and in United States v. Booker the Supreme Court held that the mandatory Guidelines violated the Sixth Amendment. 543 U.S. at 233-37. Importantly, the Booker Court made clear that the mandatory Guidelines did much more than merely guide or advise the district courts' discretion. First, the Booker Court repeatedly emphasized that the mandatory Guidelines circumscribed district judges' discretion: “If the Guidelines as written could be read as merely advisory provisions that recommended, rather than required, the selection of particular sentences . . . their use would not implicate the Sixth Amendment.” Id. at 233. The Booker Court stated directly that the “Guidelines as written, however, are not advisory; they are mandatory and binding on all judges.” Id. at 234; see also Id. (“In most cases . . . the judge is bound to impose a sentence within the Guidelines range.”); id. at 235 (“Booker's case illustrates the mandatory nature of the Guidelines.”). Second, because they were binding on judges, the Supreme Court “consistently held that the Guidelines ha[d] the force and effect of laws.” Id. at 234 (citing Mistretta v. U.S., 488 U.S. 361, 391 (1989); Stinson v. U.S., 508 U.S. 36, 42 (1993)). Although judges had limited discretion to deviate from the Guidelines “prescribed sentencing range, ” that did not avoid a constitutional problem. Id. at 234-35.

         Considering Johnson, Beckles, and Booker, the Court finds Johnson applies to the mandatory Guidelines. The Beckles opinion rests almost exclusively on the premises that the advisory Guidelines do not bind the district court's discretion and do not have the force and effect of law. Beckles, 137 S.Ct. at 134-35. But Booker makes clear that the mandatory Guidelines severely limited judges' discretion and had the force and effect of laws that fix the permissible range of sentences. Booker, 543 U.S. at 233-35; see Alleyne v. U.S., 133 S.Ct. 2151, 2160 (stating “the legally prescribed range is the penalty affixed to the crime”). Because Petitioner was sentenced pre-Booker, Beckles is inapplicable to his case. The Court therefore finds that the Johnson holding applies to the mandatory Guidelines and Petitioner's sentence.

         Respondent's protests to the contrary are unconvincing. First, Respondent argues that because the Guidelines do not establish minimum and maximum sentences they do not have the force and effect of laws. (CV Doc. 12 at 5-6). This argument obscures the pre-Booker Guidelines' mandatory effects. The Guidelines were no less mandatory simply because they mandated a narrower range within broad statutory limits. See Booker, 543 U.S. at 233. Respondent also argues that district judges' authority to depart from the Guidelines means they did not “fix the range of permissible sentences.” (CV Doc. 12 at 6). However, in Booker, “[t]he availability of a departure in specified circumstances [did] not avoid the constitutional issue.” Id. at 234. Here again, the district courts' limited discretion does not negate the fact that the district judge was “bound to impose a sentence within the Guidelines range.” Id.; see Hawkins v. U.S., 706 F.3d 820, ...


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