United States District Court, D. Nevada
before the court is petitioner Judel Espinoza-Gonzalez's
motion to vacate, set aside, or correct sentence pursuant to
28 U.S.C. § 2255. (ECF Nos. 84, 85). The government
filed a response (ECF No. 88), to which petitioner replied
(ECF No. 89).
11, 2012, petitioner pleaded guilty to counts (1) through (5)
of the information (ECF No. 64): (count 1) conspiracy to
interfere with commerce by robbery, 18 U.S.C. § 1951;
(count 2) interference with commerce by robbery, 18 U.S.C.
§ 1951; (count 3) use and brandishing a firearm in
relation to a crime of violence, 18 U.S.C. § 924(c);
(count 4) kidnapping, 18 U.S.C. § 1201; and (count 5)
conspiracy to possess more than 100 grams of heroin with
intent to distribute, 21 U.S.C. § 846. (ECF No. 68).
maximum penalty for counts (1) and (2) is not more than
twenty (20) years imprisonment, a $250, 000.00 fine, or both.
The maximum penalty for count (3) is not less than seven (7)
years imprisonment to run consecutively to any other
sentence. The maximum penalty for count (4) is imprisonment
for life, a $250, 000.00 fine, or both. The maximum penalty
for count (5) is not more than forty (40) years
imprisonment-and, due to the amount of heroin involved in the
conspiracy, a five (5) year mandatory minimum was applicable
pursuant to 21 U.S.C. § 841(b)(1)(B). (See ECF
No. 66 at 8-9).
plea agreement, petitioner knowingly and expressly waived,
inter alia, “the right to bring any collateral
challenges, including any claims under 28 U.S.C. § 2255,
to his conviction, sentence and the procedure by which the
court adjudicated guilt and imposed sentence, except
non-waivable claims of ineffective assistance of
counsel.” (ECF No. 66 at 7).
February 19, 2013, the court sentenced petitioner to 97
months on counts (1), (2), (4), and (5) to run concurrently
and 84 months on count (3) to run consecutively-for a total
of 181 months in custody-followed by five (5) years
supervised release. (ECF No. 78). Petitioner was advised of
his rights to file an appeal. (ECF No. 78). The court entered
judgment on March 21, 2013. (ECF No. 80).
instant motion, petitioner moves to vacate the sentencing
enhancement applied to his sentence pursuant to Johnson
v. United States, 135 S.Ct. 2551 (2015), and requests
that the court resentence him to 97 months, the low end of
the guideline range without the § 924(c) conviction.
(ECF No. 85).
prisoners “may move . . . to vacate, set aside or
correct [their] sentence” if the court imposed the
sentence “in violation of the Constitution or laws of
the United States . . . .” 28 U.S.C. § 2255(a).
Section 2255 relief should be granted only where “a
fundamental defect” caused “a complete
miscarriage of justice.” Davis v. United
States, 417 U.S. 333, 345 (1974); see also Hill v.
United States, 368 U.S. 424, 428 (1962).
on § 2255 motions are based on the fact that the movant
“already has had a fair opportunity to present his
federal claims to a federal forum, ” whether or not he
took advantage of the opportunity. United States v.
Frady, 456 U.S. 152, 164 (1982). Section 2255 “is
not designed to provide criminal defendants multiple
opportunities to challenge their sentence.” United
States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). .
instant motion, petitioner asserts that he is not subject to
the § 924(c) conviction because his underlying
conviction (Hobbs Act robbery) does not constitute a
“crime of violence.” (ECF No. 85 at 10).
Petitioner argues that his sentence is unconstitutional under
Johnson because Johnson's holding
applies equally to the residual clause in §
924(c)(3)(B). (ECF No. 85 at 7). Petitioner thus maintains
that Johnson's holding renders the government
unable to prove that Hobbs Act robbery constitutes a crime of
violence without relying on the residual clause. (ECF No. 85
at 13). The court disagrees.
Armed Career Criminal Act of 1984 (“ACCA”)
defines “violent felony” as any crime punishable
by imprisonment for a term exceeding one year, that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the ...