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Clark v. United States

United States District Court, D. New Mexico

January 29, 2018

MARC GENE CLARK, Movant,
v.
UNITED STATES OF AMERICA, Respondent. No. CV 16-00651 JAP/SCY

          MEMORANDUM OPINION AND ORDER

         Under Rule 4(b) of the Rules Governing Section 2255 Proceedings the Court considers the 28 U.S.C. § 2255 Motion to Vacate Sentence filed by Movant Marc Gene Clark on June 23, 2016 (CV Doc. 1; CR Doc. 29). Clark seeks to vacate and correct his sentence under Johnson v. United States, 578 U.S.__, 135 S.Ct. 2551 (2015). The Court determines that Clark is not eligible for relief under Johnson and will dismiss the Motion.

         FACTUAL AND LEGAL BACKGROUND

         On October 24, 2005, Clark was charged with Taking by Force or Violence within the Special Maritime and Territorial Jurisdiction in violation of 18 U.S.C. § 2111 and Use of a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. § 924(c)(1)(A)(iii). (CR Doc. 14). The Information stated:

“COUNT 1. On or about July 6, 2005, in San Juan County, within the exterior boundaries of the Navajo Nation, Indian country, in the State and District of New Mexico, the defendant, MARC GENE CLARK, by force and violence and by intimidation, did take from the presence of Dewayne Johnson, cashier at the Thriftway convenience store, $101.00 in U.S. currency. In violation of 18 U.S.C. §§ 1153 and 2111.
COUNT 2. On or about July 6, 2005, in San Juan County, within the exterior boundaries of the Navajo Nation, Indian country, in the State and District of New Mexico, the defendant, MARC GENE CLARK, knowingly used and discharged a firearm, a Glenfield Model 60, .22 caliber semi-automatic rifle, serial number 24553218, during and in relation to a crime of violence, for which he may be prosecuted in a court of the United States, to wit: 18 U.S.C. § 2111: Taking by Force or Violence within the Special Maritime and Territorial Jurisdiction. ”

(CR Doc. 14).

         On October 24, 2005, Clark entered into a Fed. R. Crim. P. 11 Plea Agreement in which he pled guilty to the two-count Information and agreed that sentencing would be under the United States Sentencing Guidelines. (CR Doc. 17). The parties stipulated that the appropriate sentence was at the bottom of the applicable advisory sentencing guideline range. (CR Doc. 17 at 4). Clark was then sentenced to a term of 30 months as to Count 1 and 120 months as to Count 2, the terms to run consecutively for a total term of 150 months of imprisonment. (CR Doc. 21 at 2). (CR Doc. 40).

         Clark contends that Johnson invalidates the residual clause of 18 U.S.C. § 924(c)(3)(B) and that Taking by Force or Violence within the Special Maritime and Territorial Jurisdiction under 18 U.S.C. § 2111 is not a crime of violence as defined in the element clause or the force clause of § 924 (c). (CV Doc. 1 at 4-9; CR Doc. 29 at 4-9).

         APPLICABLE LAW ON JOHNSON V. UNITED STATES AND SECTION 2255 COLLATERAL REVIEW

         Clark seeks collateral review of his sentence in CR 05-02260 JP under 28 U.S.C. § 2255(a), which reads:

“A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

         Because Clark seeks collateral review more than a year after his sentences became final, he relies on a right newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review in Johnson and Welch v. United States, 578 U.S. __, 136 S.Ct. 1257 (2016). See 28 U.S.C. § 2255(f)(3).

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) is impermissibly vague and that basing an increased sentence on the residual clause of 18 U.S.C. § 924(e)(2)(B) violates the Constitution's guarantee of due process. 135 S.Ct. at 2562-2563. Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous ...


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