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Zamora v. United States

United States District Court, D. New Mexico

September 22, 2017

RAUL ZAMORA, Petitioner,


          Judith C. Herrera, United States District Court Judge

         This matter comes before the Court on Petitioner's Objections to the Magistrate Judge's Proposed Findings and Recommended Disposition (doc. 18).[1] Being fully advised, the Court will overrule the objections, adopt the Proposed Findings and Recommended Disposition (“PFRD”) (doc. 15), and deny Petitioner's Emergency Motion to Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1) as untimely.

         I. Background

         On July 21, 1998, Petitioner was convicted by a jury of Attempted Armed Bank Robbery in violation of 18 U.S.C. § 2113(a) and (d), as charged in Count I of the two- count first superseding indictment. Cr. docs. 60, 94.

         The United States Probation Office prepared a presentence report (“PSR”) to aid the Court in sentencing. The PSR classified Petitioner as a career offender pursuant to U.S.S.G. § 4B1.1, increasing the applicable mandatory sentencing range to 262-367 months. PSR ¶¶ 35, 64; see also U.S.S.G. § 4B1.1(b). Without the career offender enhancement, the applicable sentencing guideline range would have been 100-125 months. PSR ¶ 63.

         The Probation Office deemed the career offender enhancement applicable based on its determination that both Petitioner's instant offense of attempted armed bank robbery as well as three of Petitioner's prior convictions constituted “crimes of violence” under the definition found in U.S.S.G. § 4B1.2(a)(2), [2] thus triggering the sentencing enhancement.[3] PSR ¶¶ 35, 64. These three prior convictions included: (1) a 1988 conviction for Attempt to Commit Aggravated Assault with a Deadly Weapon; (2) a 1991 conviction for False Imprisonment; and (3) a 1992 conviction for False Imprisonment, Aggravated Assault, and Robbery. PSR ¶ 64.[4]

         At the sentencing phase, the Court rejected several of Petitioner's arguments seeking a downward departure and accepted 262-367 months as the applicable sentencing guideline range. Accordingly, the Court sentenced Petitioner to 262 months of imprisonment followed by a three-year period of supervised release. See cr. doc. 102 at 10; cr. doc. 142 at 13. Significant to the present motion, Petitioner was sentenced in 1998, prior to the Supreme Court's decision in United States v. Booker, which made the sentencing guidelines “effectively advisory.” 543 U.S. 220, 245, 258-65 (2005). Therefore, the sentencing judge had limited authority to depart from the sentencing range dictated by the guidelines.

         At the time of Petitioner's sentencing, the guidelines defined “crime of violence” as follows:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

U.S.S.G. § 4B1.2(a) (1997) (emphasis added).

         The italicized portion above is central to resolving Petitioner's motion. This language is identical to what is known as the “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), which the Supreme Court struck down as unconstitutionally vague in United States v. Johnson, 135 S.Ct. 2551 (2015). The Supreme Court announced that Johnson would apply retroactively on collateral review in Welch v. United States, reasoning that Johnson announced a substantive new rule. 136 S.Ct. 1257, 1264-65 (2016). As the same “residual clause” language of 18 U.S.C. §924(e)(2)(B) appears in numerous other iterations throughout the United States Code and in the United States Sentencing Guidelines, the Johnson decision has generated a mountain of jurisprudence devoted to examining which-if any-of these doppelgängers falls under the umbrella of the “new rule” announced in Johnson.

         Complicating matters further, a habeas petition brought pursuant to 28 U.S.C. § 2255 is only timely if it is brought within one year of the later of:

(1) the date on which the judgment of conviction becomes final; [or]
. . .
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review . . . .

Id. § 2255(f).[5] Moreover, “[a] district court is authorized to modify a Defendant's sentence only in specified instances where Congress has expressly granted the court jurisdiction to do so.” United States v. Blackwell, 81 F.3d 945, 947 (10th Cir. 1996).[6] Therefore, a petitioner such as Mr. Zamora, who is seeking the benefit of the Johnson rule whose sentence was not enhanced pursuant to the ACCA, but whose conviction became final more than a year prior to the filing of his petition, must overcome the additional hurdle of proving his petition to be timely under ...

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