United States District Court, D. Nevada
before the court is petitioner Hector Cirino's
(“petitioner”) motion for reconsideration. (ECF
No. 177). The court finds no response necessary and further
finds the motion properly resolved without oral argument.
See LR 78-1.
instant motion follows petitioner's sentence to 360
months in custody for the possession of a firearm during and
in relation to a crime of violence on December 22, 2003.
(See ECF No. 43, 48). On June 6, 2016, petitioner
filed a motion to vacate, set aside, or correct his
conviction pursuant to 28 U.S.C. § 2255. (See
ECF No. 160). The court denied petitioner's motion to
vacate on July 5, 2017. (ECF No. 176).
instant motion, petitioner argues that reconsideration of the
court's July 5th order (ECF No. 176) is proper because
“[t]his [c]ourt did not determine whether federal armed
bank robbery remains a crime of violence under § 924(c)
in light of Johnson [v. United States, 135
S.Ct. 2551 (2015)], and other controlling case
authority.” (ECF No. 177 at 4). Further, petitioner
argues that “[t]he Ninth Circuit is poised to determine
whether § 924(c)'s residual clause is void for
vagueness in United States v. Begay, No. 14-10080
(9th Circ. Mar. 29, 2017), which is deferred pending the
Supreme Court's ruling in [Sessions v. Dimaya,
No. 15-1498, 2016 WL 3232911 (U.S. Sept. 29, 2016)], ”
concerning the vagueness of 18 U.S.C. § 16(b). (ECF No.
177 at 4). The court disagrees.
motion for reconsideration “should not be granted,
absent highly unusual circumstances.” Kona Enters.,
Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir.
2000). “Reconsideration is appropriate if the district
court (1) is presented with newly discovered evidence, (2)
committed clear error or the initial decision was manifestly
unjust, or (3) if there is an intervening change in
controlling law.” School Dist. No. 1J v. ACandS,
Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); Fed.R.Civ.P.
Armed Career Criminal Act of 1984 (“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 person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis added). The closing
words emphasized above have come to be known as the
ACCA's “residual clause.” See, e.g.,
Johnson, 135 S.Ct. at 2555-56.
Johnson, the United States Supreme Court held the
ACCA's residual clause to be unconstitutionally vague as
a statute fixing permissible sentences. 135 S.Ct. at 2557. In
particular, the Supreme Court found that the ACCA's
residual clause, where applicable, impermissibly fixed a
higher sentence for certain defendants by requiring
sentencing courts to increase a defendant's prison term
from a statutory minimum of ten (10) years to a minimum of
fifteen (15) years. Id.
(3) of § 924(c) defines the term “crime of
violence” as an offense that is a felony and-
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3).
is inapplicable here because petitioner's sentence did
not involve the ACCA's residual clause under §
924(e)(2)(B). Rather, petitioner was convicted pursuant to
§ 924(c)(1)(A)(i) and (ii). (See ECF No. 1).