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Apodaca v. United States

United States District Court, D. New Mexico

October 12, 2017

DAVID APODACA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

         THIS MATTER is before the Court on United States Magistrate Judge Carmen E. Garza's Proposed Findings and Recommended Disposition (the “PFRD”), (CV Doc. 23), filed July 6, 2017; and Petitioner David Apodaca's Objections to the Magistrate's Proposed Findings and Recommended Disposition (the “Objections”), (CV Doc. 26), filed August 21, 2017.[1] In the PFRD, the Magistrate Judge recommended denying Petitioner'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, following the United States Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). (CV Doc. 23 at 8).

         The parties were notified that written objections to the PFRD were due within 14 days. Id. Petitioner timely objected. (CV Doc. 26). Respondent did not object to the PFRD or respond to Petitioner's Objections, and the time for doing so has passed. Following a de novo review of the PFRD, the Objections, and the record, the Court will overrule Petitioner's Objections, adopt the PFRD, and deny Petitioner's Motion.

         I. Background

         This case arises from Petitioner's guilty plea and sentence, but it has come to involve questions regarding advisory sentence range calculations, the interplay between precedent from the Tenth Circuit Court of Appeals and the Supreme Court, and the Court's understanding of its own discretion. On September 7, 2007, Petitioner pled guilty pursuant to a Fed. R. Crim. P. Rule 11(c)(1)(C) plea agreement to two counts: conspiracy to manufacture, distribute, and possess with intent to distribute controlled substances, in violation of 21 U.S.C. § 846, and 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's pre-sentence report (“PSR”) calculated Petitioner's advisory United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) range as 292 to 365 months based on Petitioner's adjusted offense level of 35 and criminal history category VI. (CR Doc. 566 at 2; CV Doc. 21 at 2). The PSR calculated this range based on the amount of methamphetamine involved, the firearms found at Petitioner's residence, and Petitioner's role in directing or managing another, which resulted in an adjusted offense level of 38, and a three-level reduction for Petitioner's acceptance of responsibility. (CV Doc. 1 at 3).

         The PSR also considered whether Petitioner was a “career offender” under Guidelines § 4B1. Id. Although the PSR determined that Petitioner was a career offender, the PSR found that irrelevant because Petitioner's career offender offense level, 37, was lower than the adjusted offense level it previously calculated. Id.; see Guidelines § 4B1.1(b) (providing “. . . if the offense level for a career offender from the table in this subsection is greater than the offense level otherwise applicable, the offense level from the table in this subsection shall apply.”). Accordingly, the PSR used an adjusted offense level of 35 and a range of 292-365 months, rather than the lower offense level and range under the career offender enhancement.

         Contrary to the advisory range calculated in the PSR, the parties stipulated to a 240-month sentence. (CR Doc. 566 at 3). Importantly, the parties calculated Petitioner's sentence differently than the PSR. First, based on Guidelines §§ 1B1.3 and 2D1.1, the plea agreement stated Petitioner's base offense level was 34. Id. at 4. Like the PSR, the parties then added two levels under § 2D1.1(b)(1) for possession of a dangerous weapon and subtracted three levels under § 3E1.1 because Petitioner accepted personal responsibility for his criminal conduct, for an adjusted offense level of 33. Id. at 5; see (CR Doc. 417 at 4). The plea agreement does not cite Guidelines § 4B1.1 or mention a career offender enhancement.

         At the sentencing hearing, the Court asked how the parties arrived at ¶ 240-month sentence. (CR Doc. 417 at 4). Respondent explained the discrepancy was based on Respondent not including the two-level increase for a managing/directing role adjustment. Id. Petitioner's Guidelines range based on offense level 33 was 235 to 293 months, and 240 months was within that range. Id. Neither party mentioned the career offender enhancement or whether it figured into their calculation. In the end, the Court found the PSR correctly determined Petitioner's offense level, Guideline range, and Petitioner's career offender status. Id. at 10. However, based on its review of the PSR and the parties' representations, the Court was satisfied that the stipulated sentence departed from the Guidelines range for justifiable reasons and accepted the plea agreement. Id. at 11.

         On June 10, 2016, Petitioner filed his Motion, arguing he was unconstitutionally sentenced as a career offender. (CR Doc. 580; CV Doc. 1 at 1). Petitioner argues that under Johnson v. United States, 135 S.Ct. 2551 (2015), the “residual clause” in the definition of “career offender” is unconstitutionally vague and that he was deemed a career offender in reliance on the clause; therefore, he is entitled to be resentenced. (CV Doc. 1 at 6-16). Specifically, Petitioner claims his conviction for conspiracy to commit escape is not a “crime of violence” under the Guidelines except under the residual clause, which Johnson declared unconstitutionally vague. Id. at 13-16. Petitioner asks that, upon resentencing, he be granted relief under 18 U.S.C. § 3582(c). Id. at 17; see (CR Docs. 561-76).

         On March 6, 2017, the Supreme Court decided Beckles v. United States, holding that Johnson does not apply to the advisory Guidelines. 137 S.Ct. 886, 890 (2017). The Supreme Court distinguished the mandatory Guidelines before its decision in United States v. Booker, 543 U.S. 220 (2005), and the “effectively advisory” Guidelines post-Booker. Id. at 893-94. Because the advisory Guidelines “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. The Beckles court left open the question whether its decision applied to sentences entered before Booker, when the Guidelines “fix[ed] the permissible range of sentences.” Id. at 903 n.4 (Sotomayor, J., dissenting). Given Beckles' holding and Petitioner's reliance on Johnson's application to the Guidelines, the Court ordered supplemental briefing to address whether Petitioner's Motion survived Beckles. (CV Doc. 13).

         Petitioner denies that Beckles is fatal to his Motion. Rather, Petitioner maintains that “Beckles did not exempt from vagueness challenges in which the sentencing court was obligated to apply the career offender [G]uidelines.” (CV Doc. 18 at 1). According to Petitioner, Tenth Circuit precedent “required” district courts to apply career offender enhancements; district courts were “bound to apply the career offender guideline and impose a sentence within the imprisonment range dictated by that guideline.” Id. at 2, 8. Petitioner argues district courts could not depart from the career offender enhancement “based on general policy disagreements with the guidelines, ” so the Guidelines were not truly advisory. Id. at 9-10. Thus, Petitioner contends, even though he was sentenced after Booker made the Guidelines advisory, Beckles does not apply to him. Id.

         The Magistrate Judge disagreed and recommended denying the Motion. (CV Doc. 23 at 8). Beckles, the Magistrate Judge reasoned, stated a bright-line rule: the post-Booker, advisory Guidelines, including the career offender enhancement, are not subject to vagueness challenges. Id. at 7-8; Beckles, 137 S.Ct. at 892 (“Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process Clause. The residual clause in § 4B1.2(a)(2) is not void for vagueness.”). The Magistrate Judge found that the career offender enhancement was not mandatory such that Beckles did not apply to Petitioner. (CV Doc. 23 at 5-8).

         Petitioner has timely objected to the PFRD. In his Objections, Petitioner argues again that “when he was sentenced the career offender guidelines were mandatory” in the Tenth Circuit “and necessarily fixed the guideline imprisonment range;” district courts were “expected to impose the imprisonment term fixed by the career offender guidelines.” (CV Doc. 26 at 1). That Booker made the Guidelines advisory “does not matter, ” Petitioner states, because the Tenth Circuit treated the career offender enhancement as mandatory. Id. at 2. Petitioner relies on the holdings and histories of five cases: Gall v. U.S., 552 U.S. 38 (2007); Kimbrough v. U.S., 552 U.S. 85 (2007); U.S. v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007), judgement vacated and remanded by Garcia-Lara v. U.S., 553 U.S. 1016 (2008); U.S v. Friedman, 554 F.3d 1301 (10th Cir. 2009); and U.S. v. Vasquez, 558 F.3d 1224 (11th Cir. 2009), judgement vacated and remanded by Vazquez v. U.S., 558 U.S. 1144 (2010). Id. at 2-6. Petitioner contends these cases prove that when he was sentenced “the career offender guideline imprisonment range fixed the imprisonment range the court was expected to impose.” Id. at 6.

         As further explained below, the Court agrees with the Magistrate Judge that Beckles bars Petitioner's claim that the Guidelines residual clause is unconstitutionally vague. Furthermore, the cases Petitioner relies on do not show that the Guidelines were effectively mandatory in the Tenth Circuit post-Booker. Finally, even though the Tenth Circuit remanded some cases for resentencing following intervening authority from the Supreme Court, Petitioner is not entitled to resentencing under the facts and circumstances in this case.

         II. ...


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