United States District Court, D. Nevada
D. George, United States District Judge.
Andrea Zambrano moves to vacate, set aside, or correct
criminal sentence pursuant to 28 U.S.C. §2255 (ECF ##
73, 75), which the government opposes (ECF #79).
The Court will deny the motion.
also moves, pro se, to stay interest and defer
payments because her obligation to pay restitution is joint
and several (ECF #95), and has submitted a handwritten letter
that both (a) asks the Court to modify her obligation to pay
restitution, so that she has individual obligation to pay
only half of the restitution owed to the victim, rather than
a joint and several obligation with co-defendant Anthony
Carter to pay the entire amount of the restitution, and asks
the Court to grant her credit for time served (ECF #96).
pled guilty to carjacking in violation of 18 U.S.C.
§2119 and to using a firearm during and in relation to a
crime of violence in violation of 18 U.S.C. §924(c). She
argues that carjacking neither (a) qualifies as a crime of
violence (a) under §924(c)'s physical force clause
because carjacking can be committed by
"intimidation," nor (b) qualifies pursuant to
Section 924(c)'s residual clause, as that clause should
be found to be unconstitutional pursuant to the Supreme
Court's reasoning in Johnson v. United States,
135 S.Ct. 2551 (2015).
bars exist that preclude Zambrano from obtaining relief on
her motion. In Johnson, the Supreme Court held that
the residual clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(1), (2)(B)(ii), was unconstitutionally
vague. Zambrano filed the instant motion arguing that
Johnson is equally applicable to §924(c) cases
and that her instant motion is timely as it was filed within
one year of Johnson. The Ninth Circuit, however, has
held to the contrary, finding that "[t]he Supreme Court
has not recognized that § 924(c)'s residual clause
is void for vagueness in violation of the Fifth
Amendment." United States v. Blackstone, 903
F.3d 1020, 1028 (9th Cir. 2018). As indicated by
the Ninth Circuit, "[t]he Supreme Court may hold in the
future that Johnson extends to sentences imposed ...
pursuant to 18 U.S.C. § 924(c), but until then
[defendant's] motion is untimely." Id.
moves to stay consideration of her §2255 motion until
the Ninth Circuit issues "the mandate in
Blackstone or until the United States Supreme Court
resolves certiorari of Blackstone, whichever is
later." As the Ninth Circuit has issued its decision in
Blackstone, however, this Court is bound to follow
that decision. Yong v. I.N.S., 208 F.3d 1116, 1119
n.2 (9th Cir. 2000).
even if the Supreme Court issues certriorari and reverses
Blackstone, permitting Zambrano's motion to be
considered on its merits, her motions nevertheless will fail
as the Ninth Circuit has rejected the specific argument
raised by Zambrano: that carjacking is not a crime of
violence under the §924(c)'s physical force clause
because it can be committed by intimidation.
To be guilty of carjacking "by intimidation," the
defendant must take a motor vehicle through conduct that
would put an ordinary, reasonable person in fear of bodily
harm, which necessarily entails the threatened use of violent
physical force. It is particularly clear that
"intimidation" in the federal carjacking statute
requires a contemporaneous threat to use force that satisfies
Johnson [v. United States, 559 U.S. 133, 140,
130S.Ct. 1265, 176 L.Ed.2d 1 (2010)] because the statute
requires that the defendant act with "the intent to
cause death or serious bodily harm." 18 U.S.C. §
United States v. Gutierrez, 876 F.3d 1254, 1257 (9th
Court will also deny Zambrano's pro se motions,
both because the Court lacks authority to provide the relief
requested and because the Court intended, and did not err, in
determining that Zambrano be jointly and severally liable
with her co-defendant for the restitution they owe to the
victim of their criminal conduct.
appeal this order, Zambrano must receive a certificate of
appealability from a circuit or district judge. 28 U.S.C.
§2253(c)(1)(B); Fed. R. App. P. 22(b)(1); 9th
Cir. R. 22-1(a). To obtain that certificate, Zambrano
"must make a substantial showing of the denial of a
constitutional right, a demonstration that... includes
showing that reasonable jurists could debate whether (or, for
that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed
further." Slack v. McDaniel, 529 U.S. 473,
483-84 (2000) (quotation omitted). Though the Supreme Court
has not yet decided whether to issue certiorari in
Blackstone, reasonable jurists cannot debate that
the Ninth Circuit has squarely rejected Zambrano's
argument that carjacking is a not a crime of violence under
§924(c)'s physical force clause. Accordingly, the
Court will decline to issue a certificate of appealability.
for good cause shown, THE COURT ORDERS that
Defendant's Motion to Stay (ECF #89) is DENIED;
COURT FURTHER ORDERS that Defendant's
Abridged Motion and Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. §2255 (ECF ## 73, 75) and her
pro se Motion for Reconsideration raising the ...