United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE
the court is petitioner Ruben Tirado's motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. ECF No. 33. The United States filed a response
(ECF No. 37), but Tirado failed to reply. Because Tirado was
not sentenced under the Armed Career Criminal Act
("ACCA") or under a federal statute or sentencing
guideline that incorporates a crime-of-violence definition,
the U.S. Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015) is inapplicable to
his sentence. The court will therefore deny his motion and
deny him a certificate of appeal ability.
August 5, 2014, Tirado, pursuant to a plea agreement with the
United States, pled guilty to one count of felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2). ECF Nos. 25-26. On
November 6, 2014, this court sentenced him to 60 months of
imprisonment. ECF Nos. 30-31.
to 28 U.S.C. § 2255, a prisoner may move the court to
vacate, set aside, or correct a sentence if "the
sentence was imposed in violation of the Constitution or laws
of the United States, or... the court was without
jurisdiction to impose such sentence, or... the sentence was
in excess of the maximum authorized by law, or is otherwise
subject to collateral attack." 28 U.S.C. § 2255(a).
"Unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief,
the court shall cause notice thereof to be served upon the
United States attorney, grant a prompt hearing thereon,
determine the issues and make findings of fact and
conclusions of law with respect thereto." Id.
Tirado is not entitled to relief
argues that he is entitled to relief under Johnson v.
United States. There, the U.S. Supreme Court ruled that
a portion of the ACCA's violent-felony definition, often
referred to as the "residual clause, " was
unconstitutionally vague (i.e., "void for
vagueness"). Johnson, 135 S.Ct. at 2557. The
ACCA applies to certain defendants charged with unlawful
possession of a firearm under 18 U.S.C. § 922(g), such
as being a felon in possession of a firearm under §
922(g)(1). 18 U.S.C. § 924(e). Normally, a defendant
convicted of unlawful possession of a firearm may be
sentenced to a statutory maximum of 10-years'
imprisonment. Id. § 924(a)(2). However, if a
defendant has three prior convictions that constitute either
a "violent felony" or "serious drug offense,
" the ACCA enhances the 10-year maximum sentence to a
15-year minimum sentence. Id. § 924(e)(1).
Supreme Court subsequently held that Johnson
announced a new substantive rule that applied retroactively
to cases on collateral review, Welch v. United
States, 136 S.Ct. 1257 (2016), thus allowing defendants
to challenge their ACCA convictions under section 2255.
See, e.g., United States v. Avery, No. 3:02-CR-l
13-LRH-VPC, 2017 WL 29667, at *1 (D. Nev. Jan. 3, 2017).
Johnson has also sparked challenges to other federal
criminal statutes and sections of the U.S. Sentencing
Guidelines ("U.S.S.G.") that incorporate a
"crime-of-violence" definition that includes a
residual clause similar or identical to the ACCA's.
Although some of these issues are currently being litigated,
the Supreme Court ruled several weeks ago that, unlike the
ACCA, the U.S. Sentencing Guidelines are not subject to
void-for-vagueness challenges. Beckles v. United
States, 137 S.Ct. 886 (2017). Thus, even if a defendant
was sentenced under a guideline that incorporates a
crime-of-violence definition, he has no basis for relief
Tirado was convicted of being a felon in possession of a
firearm under section 922(g)(1). However, the United States
never argued that he was an "armed career criminal"
under the ACCA, and the statute therefore did not affect his
sentence. See ECF Nos. 1, 26, 31. Additionally, none
of the guidelines applicable to Tirado's sentence
incorporate a violent-felony or crime-of-violence definition.
ECF No. 26 at 6-7. And even if this were not the case,
Beckles precludes such a guideline from serving as a
basis of relief under Johnson. Accordingly, the
court will deny Tirado 's motion.
The court will deny Tirado a certificate of appeal
the Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA"), "an appeal may not be taken to the
court of appeals from ... the final order in a proceeding
under section 2255" unless a district court issues a
certificate of appealability ("COA") based on
"a substantial showing of the denial of a constitutional
right." 28 U.S.C. § 2253(c)(1)(B). "The
petitioner must demonstrate that reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong. To meet this
threshold inquiry, the petitioner must demonstrate that the
issues are debatable among jurists of reason; that a court
could resolve the issues in a different manner; or that the
questions are adequate to ...