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United States v. Gonzalez-Corporan

United States District Court, D. Nevada

July 5, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
IVAN GONZALEZ-CORPORAN, et al., Defendants.

          ORDER

         Presently 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).

         I. Background

         On 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).

         On 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).

         On 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).

         On 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).

         In the 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).

         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 his § 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.

         In 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 ...

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