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Apalategui v. United States

United States District Court, D. New Mexico

August 18, 2017

CHRISTOPHER A. APALATEGUI, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          COBERLY & MARTINEZ, LLLP TODD A. COBERLY

          CHRISTOPHER APALATEGUI'S MEMORANDUM OF LAW IN SUPPORT OF MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

         Christopher A. Apalategui, through undersigned counsel, respectfully submits the following memorandum in support of his Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, (Doc. 59).[1] For the following reasons, Mr. Apalategui respectfully requests that the Court vacate his sentence in the underlying matter and resentence him expeditiously.

         BACKGROUND

         On February 12, 2013, Mr. Apalategui, without the benefit of a plea agreement, pleaded guilty to a one-count indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At sentencing, the Court determined that Mr. Apalategui had three qualifying “violent felony” convictions for purposes of the Armed Career Criminal Act (“ACCA”): (1) a 1996 conviction in Oregon for first degree burglary; (2) a 1994 conviction in Arizona for second degree burglary; and (3) a 2000 conviction in Arizona for aggravated robbery. (PSR ¶ 29, at 7.) The Court sentenced Mr. Apalategui to 180 months' imprisonment, the mandatory minimum under the ACCA. (Doc. 41 at 2.) Absent application of the ACCA, Mr. Apalategui faced a statutory maximum penalty of ten years' imprisonment. See 18 U.S.C. § 924(a)(2).

         ARGUMENT

         Mr. Apalategui's ACCA-enhanced sentence is no longer constitutional after Johnson v. United States, 135 S.Ct. 2551 (2015). Two of the three predicate felonies on which the Court relied to enhance Mr. Apalategui's sentence pursuant to the ACCA-specifically the Oregon conviction for first degree burglary and the Arizona conviction for second degree burglary-no longer qualify as violent felonies. The Court should thus vacate Mr. Apalategui's sentence and expeditiously resentence him without applying the ACCA.

         I. The ACCA's Residual Clause Is Unconstitutional.

         A defendant convicted of being a felon in possession of a firearm typically faces a maximum ten-year term of imprisonment. See § 924(a)(2). The ACCA, however, mandates a minimum fifteen-year term of imprisonment for such a defendant if he has three prior “violent felony” or a “serious drug offense” convictions. See § 924(e)(1). Prior to Johnson, a prior conviction falls within the ACCA's definition of a “violent felony” in one of three ways. First, a defendant has been convicted of a violent felony if the crime “has as an element the use, attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i). This has become known as the ACCA's “force clause.” Second, certain convictions for crimes enumerated by statute are violent felonies. These are: burglary, arson, extortion, and any crime involving the use of explosives. § 924(e)(2)(B)(ii). Finally, the ACCA's so-called “residual clause” defines a violent felony as any crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id.

         In Johnson, the Supreme Court held that the ACCA's residual clause is unconstitutionally vague because it “denies fair notice to defendants and invites arbitrary enforcement by judges.” 135 S.Ct. at 2557. The Supreme Court in Welch v. United States, 136 S.Ct. 1257 (2016), held that “the rule announced in Johnson is substantive” and, thus, “retroactive in cases on collateral review.” Id. at 1265, 1268; see 28 U.S.C. § 2255(f)(3) (providing that a federal prisoner may file a § 2255 motion within one year from “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized . . . and made retroactively applicable to cases on collateral review”). Thus, it is now abundantly clear that a prior conviction can be a predicate felony under the ACCA only if: (1) it is generically one of the enumerated crimes listed in § 924(e)(2)(B)(ii); or (2) it has “as an element the attempted use, or threatened use of physical force against the person of another.” § 924(e)(2)(B)(i), and that this rule applies to defendants, like Mr. Apalategui, who were sentenced years ago. Mr. Apalategui should be resentenced because two of the predicate convictions on which the Court relied to enhance his sentence pursuant to the ACCA no longer qualify as violent felonies after Johnson.

         II. Mr. Apalategui's Oregon Conviction for First Degree Burglary No Longer Qualifies as a Violent Felony After Johnson.

         The issue here is whether Mr. Apalategui's Oregon conviction for first degree burglary constitutes “burglary” as enumerated by the ACCA. The generic offense of burglary consists of the unlawful entry into a “building or other structure.” Taylor v. United States, 495 U.S. 575, 598 (1990)). “To determine whether a prior conviction is for generic burglary . . . courts apply what is known as the categorical approach: They focus solely on whether the elements of the crime of conviction sufficiently match the elements of generic burglary, while ignoring the particular facts of the case.” Mathis v. United States, 136 S.Ct. 2243, 2248 (2016) (citing Taylor, 495 U.S. at 600-01 (1990)). As explained by the Supreme Court:

A crime counts as ‘”burglary” under the [ACCA] if its elements are the same as, or narrower than, those of the generic offense. But if the crime of conviction covers any more conduct than the generic offense, then it is not an ACCA “burglary”-even if the defendant's actual conduct (i.e., the facts of the crime) fits within the generic offense's boundaries.

Id.

         Oregon defines first degree ...


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