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United States v. Concho

United States District Court, D. New Mexico

December 4, 2017

UNITED STATES OF AMERICA, Respondent,
v.
SHANNON D. CONCHO, Petitioner. No. CV 16-0648 MV/GBW

          ORDER OVERRULING PETITIONER'S OBJECTIONS, ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION, AND DENYING PETITIONER'S § 2255 MOTION

          MARTHA VÁZQUEZ UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Petitioner's objections (doc. 12)[1] to the Magistrate Judge's Proposed Findings and Recommended Disposition (“PFRD”) (doc. 8) recommending that the Court deny Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (doc. 1). Being fully advised, the Court will overrule Petitioner's objections, adopt the PFRD, and deny Petitioner's § 2255 motion.

         I. Background

         On February 27, 2014, Petitioner pled guilty to the offense of 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). Cr. docs. 30, 31. The statute Petitioner pled guilty to violating provides in pertinent part:

[A]ny person who, during and in relation to any crime of violence . . . 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:

an 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 his plea agreement, Petitioner stipulated to the facts that he “knowingly used, carried, and brandished a firearm . . . 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.” Cr. doc. 30 at 3.

         Prior to sentencing, the United States Probation Office prepared a presentence report (PSR), which concluded in pertinent part that the offense of conviction 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). In accordance with this understanding of the applicable minimum term of imprisonment, Petitioner, in his plea agreement, stipulated to a term of 84 months of imprisonment. Cr. doc. 30 at 4. At sentencing, the Court accepted the plea agreement and sentenced Petitioner to 84 months, or seven years, of imprisonment followed by two years of supervised release.[2] Cr. docs. 36, 39.

         Following sentencing, in compliance with the plea agreement, the United States moved to dismiss the remaining four counts of the five-count indictment, which included three counts of Assault with a Dangerous Weapon in violation of 18 U.S.C. § 113(a)(3) and one count of Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1) and § 924(a)(2). See cr. doc. 2 at 1-2; cr. doc. 30 at 7; cr. doc. 37. The Court granted the motion. Cr. doc. 38.

         On June 23, 2016, Petitioner filed the present motion pursuant to 28 U.S.C. § 2255, seeking to have his conviction vacated on the basis 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” under 18 U.S.C. § 924(c)(3) 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.

         Johnson struck down as unconstitutionally vague the residual clause of the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”), which is not the statutory provision underlying Petitioner's conviction. See 18 U.S.C. § 924(e)(2)(B). Nonetheless, Petitioner argues that the definition of “crime of violence” in 18 U.S.C. § 924(c)(3) contains a clause (the “substantial risk” clause) that is sufficiently similar to the ACCA's residual clause for the Court to find that the substantial risk clause is also unconstitutionally vague pursuant to Johnson.

         Thus, 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 four previously dismissed counts to 33-41 months.[3]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 otherwise be applicable if the other four counts were reinstated and he were to plead guilty to them. Id. at 8-9.

         The United States responded to Petitioner's § 2255 motion on May 19, 2017, styling its response as a motion to dismiss the petition. Doc. 7. The motion to dismiss argued that (1) because Johnson does not apply to Petitioner's sentence, his motion is not timely under § 2255(f); (2) Petitioner's waiver of collateral attack contained in his plea agreement should be enforced to bar the petition; and (3) even if Johnson does apply to invalidate the “substantial risk” clause of 18 U.S.C. § 924(c)(3)(B), the charge of assault with a dangerous weapon ...


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