United States District Court, D. New Mexico
ORDER OVERRULING PETITIONER'S OBJECTIONS,
ADOPTING THE MAGISTRATE JUDGE'S PROPOSED FINDINGS AND
RECOMMENDED DISPOSITION, AND DENYING PETITIONER'S §
VÁZQUEZ UNITED STATES DISTRICT JUDGE
matter comes before the Court on Petitioner's objections
(doc. 12) 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 §
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
(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).
“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.
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. Cr. docs. 36, 39.
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.
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.
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
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.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.
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 ...