United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Mendez is not entitled to relief
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).
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, she has no basis for relief
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.
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
The court will deny Mendez a certificate ...