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United States v. Espinoza-Gonzalez

United States District Court, D. Nevada

April 6, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
JUDEL ESPINOZA-GONZALEZ, Defendants.

          ORDER

         Presently 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).

         I. Facts

         On July 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).

         The 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).

         In the 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).

         On 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).

         In the 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).

         II. Legal Standard

         Federal 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).

         Limitations 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). . . .

         III. Discussion

         In the 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.

         The 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 ...

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