Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Mendez

United States District Court, D. Nevada

May 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
CRYSTAL ROSE MENDEZ, Defendant.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         Before the court is petitioner Crystal Rose Mendez's motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255. ECF No. 29. The United States filed a response (ECF No. 32), but Mendez failed to reply. Because Mendez 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 her sentence. The court will therefore deny her motion and deny her a certificate of appealability.

         I. Background

         On August 11, 2015, Mendez, 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. 17-18. On October 26, 2015, this court sentenced her to 71 months of imprisonment. ECF Nos. 25-26.

         II. Legal standard

         Pursuant 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. § 2255(b).

         III. Discussion

         A. Mendez is not entitled to relief

         Mendez argues that she 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).

         The 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).

         Moreover, 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, she has no basis for relief under Johnson.

         Here, Mendez was convicted of being a felon in possession of a firearm under section 922(g)(1). However, the United States never argued that she was an "armed career criminal" under the ACCA, and the statute therefore did not affect her sentence. See ECF Nos. 1, 18, 26.

         In accordance with Mendez's Presentence Investigation Report ("PSR"), the court did calculate her sentencing range based in part on U.S.S.G. § 2K2.1(a)(4)(A), which sets a base-offense level of 20 points if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense...." See ECF No. 18 at 6. However, the PSR made clear that the application of this subsection was based on Mendez's 2011 Nevada controlled-substance conviction rather than on a crime of violence. The court therefore did not apply the crime-of-violence definition in calculating her sentencing range. 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 Mendez 's motion.[1]

         B. The court will deny Mendez a certificate ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.