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United States v. Cirino

United States District Court, D. Nevada

July 20, 2017

UNITED STATES OF AMERICA, Plaintiff(s),
v.
HECTOR CIRINO, Defendant(s).

          ORDER

         Presently 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.

         This 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).

         In the 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.

         A 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. 60(b).

         The 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.

         In 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.

         Subsection (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 another, or
(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).

         Johnson 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). Thus, ...


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