United States District Court, D. Nevada
before the court is petitioner Hector Cirino's
(“petitioner”) motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255. (ECF No.
160). The government filed a response (ECF No. 168), to which
petitioner replied (ECF No. 171).
April 15, 2003, petitioner was indicted in a two-count
indictment charging armed bank robbery in violation of 18
U.S.C. § 2113(a) and (d), and possession of a firearm
during and in relation to a crime of violence in violation of
18 U.S.C. § 924(c). (ECF No. 1). On September 29, 2003,
at a jury trial, petitioner was found guilty on both counts.
(ECF Nos. 33, 35).
December 22, 2003, petitioner was sentenced to 360 months in
custody-276 months for the bank robbery and 84 months for the
possession of a firearm during and in relation to a crime of
violence to be served consecutively. (ECF Nos. 43, 48).
Petitioner appealed the judgment on December 23, 2003. (ECF
No. 47). On September 12, 2005, the Ninth Circuit affirmed
the judgment of the district court in part and remanded to
the district court to determine whether petitioner's
prior convictions for robbery in Puerto Rico constituted
“prior felony convictions” for purposes of the
career offender enhancement under the sentencing guidelines.
(ECF No. 84).
remand, the district court resentenced petitioner to 360
months in prison. (ECF No. 91). On December 2, 2005,
petitioner filed a notice of appeal (ECF No. 94), following
which the Ninth Circuit affirmed the district court's
ruling on July 27, 2007. (ECF No. 125).
September 26, 2007, petitioner filed a 28 U.S.C. § 2255
motion to vacate. (ECF No. 129). The district court found the
motion “untimely and without merit” on October
15, 2007. (ECF No. 130 at 4).
instant motion, filed on June 6, 2016, petitioner contends
that-pursuant to Johnson v. United States, 135 S.Ct.
2551 (2015) (“Johnson”), which can be
applied retroactively-he does not qualify as a career
offender, and that his sentence violates due process of law.
(ECF No. 160).
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).
§ 2255 motion, petitioner argues that under
Johnson he does not qualify for the United States
Sentencing Guideline (“USSG”) § 2K2.1
sentencing enhancement pursuant to his status as a career
offender and that his sentence violates due process. (ECF No.
160). The court disagrees.
Johnson, the United States Supreme Court held the
residual clause in the definition of a “violent
felony” in the Armed Career Criminal Act of 1984, 18
U.S.C. § 924(e)(2)(B) (“ACCA”), to be
unconstitutionally vague. 135 S.Ct. at 2557. In particular,
the Supreme Court held that “increasing a
defendant's sentence under the clause denies due process
of law.” Id. The 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 ...