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United States v. Concho

United States District Court, D. New Mexico

July 19, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
SHANNON D. CONCHO, Defendant/Petitioner.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          GREGORY B. WORMUTH Magistrate Judge.

         This matter is before the Court on Petitioner's Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1).[1] Having reviewed Petitioner's Motion and the United States' response (doc. 7)[2] and being fully advised, I recommend Petitioner's Motion be denied.

         I. Background

         Petitioner was charged by a grand jury in a five-count indictment filed on September 5, 2012. Cr. doc. 2. Although he initially pled not guilty, on February 27, 2014 Petitioner entered a changed plea of guilty to Count 5 of the indictment-Using, Carrying, Possessing and Brandishing a Firearm During and in Relation to and in Furtherance of a Crime of Violence in violation of 18 U.S.C. § 924(c)-pursuant to Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure.[3] Cr. docs. 9, 28, 29, 30, 31. The plea agreement included a binding stipulation to a term of 84 months of imprisonment and a waiver of collateral attack other than for claims of ineffective assistance of counsel. Cr. doc. 30 at 4, 6-7. Following sentencing, the other four counts of the indictment were dismissed upon motion by the United States, in accordance with the terms of the plea agreement.[4] See cr. doc. 30 at 7; cr. docs. 37, 38.

         At the beginning of the February 27, 2014 change of plea proceeding, Petitioner was placed under oath. Cr. doc. 31 at 1. He stated that he had no illness or condition that impeded his ability to understand the proceedings. Id. Petitioner stated that he was not under the influence of drugs or alcohol and that he understood the proceedings. Id. The Court explained to Petitioner all of the terms and conditions of the agreement, including the loss of certain rights and the other consequences of entering into the agreement. Id. At the conclusion of the proceeding, the Court found that Petitioner fully understood the nature of the charges, that he fully understood the terms of his plea agreement and the consequences stemming therefrom, and that his plea of guilty was freely, voluntarily, and intelligently made. Id.

         Prior to sentencing, the United States Probation Office prepared a presentence report (PSR) at the request of the parties. See cr. doc. 33 at 2. As reflected in the PSR, Petitioner's crime of Using, Carrying, Possessing and Brandishing a Firearm During and in Relation to and in Furtherance of a Crime of Violence automatically carried a minimum seven-year (84-month) term of imprisonment pursuant to 18 U.S.C. § 924(c)(1)(A)(ii). PSR ¶ 80; see also U.S.S.G. § 2K2.4(b) (2013) (providing that the applicable guideline sentence for a § 924(c) offense is the minimum term of imprisonment required by statute). The PSR explained that had Petitioner been convicted at trial of all five counts of the indictment, rather than pleading guilty to Count 5 in exchange for the dismissal of Counts 1-4, he would have faced a guideline sentencing range of 130-141 months. PSR ¶ 88. Specifically, his total offense level for Counts 1-4 of the indictment would have been 22 combined with a criminal history category of II, resulting in an imprisonment range of 46-57 months, plus the 84 months of imprisonment for Count 5, which must be imposed to run consecutively pursuant to 18 U.S.C. § 924(c)(1)(D)(ii). PSR ¶¶ 87, 88. Therefore, absent the § 924(c) charge, Petitioner would have faced a guideline range of 46-57 months, which would have been further reduced to the range of 33-41 months had he pled guilty to the remaining Counts 1-4 and received an adjustment for acceptance of responsibility.[5] See cr. doc. 33 at 2. Petitioner did not object to any of the findings in the PSR. Cr. doc. 36.

         Petitioner pled guilty to violating the following statute:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime- . . .
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years[.]

18 U.S.C. § 924(c)(1)(A).

         The same statute defines “crime of violence” 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.

18 U.S.C. § 924(c)(3).

         The “crime of violence” underlying Petitioner's § 924(c) offense was Assault with a Dangerous Weapon in violation of 18 U.S.C. § 1153 and § 113(a)(3), as charged in Counts 1-3 of the indictment. Cr. doc. 2 at 2-3. In support of his plea of guilty to Count 5, Petitioner specifically admitted to the following facts under penalty of perjury:

On or about October 2, 2011, in Indian Country, in McKinley County, in the District of New Mexico, I, Shannon D. Concho, an Indian, knowingly used, carried, and brandished a firearm, a Remington, model 870 Express, 12 gauge shotgun, serial number AB164509A, during and in relation to, and possessed and brandished said firearm in furtherance of, a crime of violence for which I may be prosecuted in a court of the United States, to wit: Assault with a Dangerous Weapon in violation of 18 U.S.C. § 113. The use of this firearm facilitated my commission of a crime because I pointed the firearm at John Doe 1's head and pushed the muzzle of the shotgun into the person of John Doe 2, without authorization, with intent to commit a felony while armed with a deadly weapon.

Cr. doc. 30 at 3.

         Petitioner's Motion argues that the federal offense of Assault with a Dangerous Weapon under 18 U.S.C. § 113(a)(3) is no longer a crime of violence in light of United States v. Johnson, 135 S.Ct. 2551 (2015). Doc. 1 at 2, 6-8. Therefore, Petitioner argues that if sentenced today, he would not qualify for a conviction pursuant to § 924(c)(1)(A). Id. at 3. Petitioner contends that the Johnson decision should be applied retroactively to vacate his conviction of Count 5 of the indictment and to adjust the sentencing guideline range for the remaining 4 counts to 33-41 months. Id. at 9. Consequently, Petitioner argues that he is entitled to resentencing as a matter of due process, as it would be a miscarriage of justice to enforce the 84-month prison sentence to which he agreed in light of the significantly lower guideline range that would be otherwise applicable. Id. at 8-9.

         The United States argues that: (1) Johnson does not apply to Petitioner's sentence, and thus Petitioner's motion is time-barred under 28 U.S.C. § 2255(f); (2) Petitioner's waiver of the right to collateral attack in his plea agreement should be enforced to dismiss his motion; and (3) assuming arguendo that Johnson does apply to render 18 U.S.C. § 924(c)(3)(B) (the “‘substantial risk' clause”) unconstitutional, the charge of assault with a dangerous weapon underlying Petitioner's conviction remains a “crime of violence” under § 924(c)(3)(A) (the “elements clause”). Doc. 7 at 3-11.

         II. Timeliness

         The United States first argues that Petitioner's motion is time-barred. Doc. 7 at 3- 6. Under 28 U.S.C. § 2255, a prisoner in federal custody may collaterally attack his sentence as unconstitutional or illegal by bringing a motion in the court which imposed the sentence. 28 U.S.C. § 2255(a). ...


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