United States District Court, D. New Mexico
PROPOSED FINDINGS AND RECOMMENDED
HONORABLE CARMEN E. GARZA UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Petitioner David Apodaca's
Motion to Correct Sentence Under 28 U.S.C. § 2255 and 18
U.S.C. § 3582(c)(2) (the “Motion”), (CV Doc.
1), filed June 14, 2016; Respondent United States of
America's Response to Defendant's Motion to Correct
Sentence Under 28 U.S.C. § 2255 and 18 U.S.C. §
3582(c)(2) (the “Response”), filed November 17,
2016; Petitioner's Reply to the Government's Response
to His Motion to Correct the Sentence Pursuant to 28 U.S.C.
§ 2255 (the “Reply”), filed December 28,
2016; Petitioner's Brief in Support of His Motion to
Correct Sentence Pursuant to 28 U.S.C. § 2255 after
Beckles v. United States (the “Supplemental
Brief”), (CV Doc. 18), filed May 5, 2017;
Respondent's Response to Defendant's Motion to
Correct Sentence under 28 U.S.C. § 2255 and 18 U.S.C.
§ 3582(c)(2) (the “Supplemental Response”),
(CV Doc. 21), filed June 5, 2017; and Petitioner's Reply
to the Government's Response to His Brief in Support of
the Motion to Correct the Sentence Pursuant to 28 U.S.C.
§ 2255 after Beckles v. United States (the
“Supplemental Reply”), (CV Doc. 22), filed June
23, 2017. 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. 4). Having considered the parties'
filings and the relevant law, the Court RECOMMENDS that
Petitioner's Motion be DENIED and this case be DISMISSED
September 7, 2007, Petitioner pled guilty to conspiracy to
manufacture, distribute, and possess with intent to
distribute controlled substances in violation of 21 U.S.C.
§ 846 and to possession with intent to distribute more
than 500 grams of methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A). (CR Doc. 253 at 2).
Petitioner and Respondent agreed that a 240 month sentence
was appropriate and should be the sentence imposed.
Id. at 3. The parties based this determination on
their calculation of Petitioner's advisory United States
Sentencing Guideline (“U.S.S.G.” or
“Guidelines”) range. Id. at 4-5.
Notably, the plea agreement does not mention whether or not
Petitioner was considered a “career offender”
under the Guidelines. However, at Petitioner's sentencing
hearing, the sentencing judge noted he agreed with
Petitioner's presentence report that Petitioner qualified
as a career offender. (CR Doc. 416 at 10).
14, 2016, Petitioner filed the instant Motion, arguing his
sentence violates his constitutional right to due process.
(CV Doc. 1 at 1). Petitioner argued that following the
Supreme Court of the United States' decision in
Johnson v. United States, 135 S.Ct. 2551 (2015),
Petitioner did not qualify as a career offender. Id.
In Johnson, the Supreme Court held that the residual
clause of the Armed Career Criminal Act (“ACCA”)
is unconstitutionally vague and may not be used to increase a
defendant's sentence. Johnson, 135 S.Ct. at
2555. Petitioner claimed Johnson applied to the
identical residual clause in Guidelines § 4B1.2 and that
the residual clause in § 4B1.2 was used to increase his
sentence. (CV Doc. 1 at 8-16). Because the Supreme Court was
likely to address whether Johnson applies to the
Guidelines in Beckles v. United States, 137 S.Ct.
886 (2017), the Court stayed this case pending
Beckles' resolution. (CV Doc. 10).
March 6, 2017, the Supreme Court held that Johnson
does not apply to the advisory Guidelines § 4B1.2.
Beckles v. U.S., 137 S.Ct. 886, 890 (2017).
Specifically, the Supreme Court determined that because
“they merely guide the exercise of a court's
discretion in choosing an appropriate sentence, ” the
advisory Guidelines are not subject to vagueness challenges.
Id. at 892. Given this holding, and because
Petitioner's arguments were based solely on
Johnson's application to the advisory
Guidelines, the Court ordered the parties to confer and
inform the Court whether any issues in Petitioner's
Motion survived Beckles. (CV Doc. 11). Petitioner
requested the Court enter a briefing schedule, (CV Doc. 12),
which the Court did, (CV Doc. 11), and supplemental briefing
Supplemental Brief, Petitioner argues that
“Beckles did not exempt from vagueness
challenges cases in which the sentencing court was obligated
to apply the career offender guidelines.” (CV Doc. 18
at 1). Basically, Petitioner argues that at the time he was
sentenced, district courts were “obligated” to
apply the career offender enhancement, therefore the
Guidelines were effectively mandatory and Beckles
does not apply. (CV Doc. 8 at 2-4). Petitioner claims
“district courts were to scrupulously apply the career
offender guidelines even if other parts of the guidelines
were merely advisory. In effect, then, in this circuit and
others, the career offender guidelines fixed the permissible
range of sentences.” (CV Doc. 22 at 3; see CV
Doc. 22 at 6-8).
response, Respondent points to Beckles' clear
holding: “the advisory Guidelines are not subject to
vagueness challenges.” Beckles, 137 S.Ct. at
892. Respondent describes Petitioner's Motion and
Supplemental Brief as reaching characterizations of
Beckles and argues a number of other reasons why
Petitioner should not be resentenced. (CV Doc. 21 at 1-5;
9-14). In reply, Petitioner insists that “when he was
sentenced the career offender guidelines were
mandatory” and “were not treated as advisory in
this circuit.” (CV Doc. 22 at 6).
U.S.C. § 2255 provides that federal prisoners may
challenge their sentences if they claim: (1) the 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). If the court finds that
a sentence infringed the prisoner'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).
Whether Beckles forecloses Petitioner's claims
threshold question is whether Petitioner's Motion
survives Beckles. As discussed, the parties strongly
disagree. Petitioner argues that the “key
difference” between mandatory and advisory guidelines
is the sentencing court's ability to depart from the
Guidelines based solely on policy disagreement. (CV Doc. 18
at 7; CV Doc. 22 at 6-7). Petitioner claims that courts in
the Tenth Circuit were obligated to adhere to the career
offender enhancement and could not depart based on policy
disagreement alone, so the Guidelines were not truly
advisory. (CV Doc. 18 at 6-10). Thus, his argument goes,
Beckles does not apply in this circumstance. Id. at
10. Respondent replies that Beckles plainly applies and is
fatal to Petitioner's Motion. (CV Doc. 21 at 9).
does not cite any case for the proposition that the
difference between advisory and mandatory Guidelines is the
ability to disagree on policy grounds alone. On the contrary,
the Supreme Court appears to have consistently clarified that
a district court's discretion must be grounded in the
particular facts of a case. See Kimbrough v. U.S.,552 U.S. 85, 110-111 (2007) (detailing district court's
consideration of sentencing factors); Pepper v.
U.S.,562 U.S. 476, 502 (2011) (explaining “that a
district court may in appropriate cases impose a
non-Guidelines sentence based on a disagreement with the
Commission's views, ” including views based on
Congressional policy) (emphasis added); see also Gall v.
U.S.,552 U.S. 38, 51 (2007) (providing reviewing court
“must give due deference to the district court's
decision that the § 3553(a) factors, on a whole, justify
the extent of the variance”). In Gall, the Supreme