Garcia-Gonzalez v. USA

Filing 7

ORDER, Motion Under 28 USCS § 2255 or in the Alternative 28 USCS § 2241 (CV15-554, Doc. 1 ; CR 09-073, Doc. 41) is DENIED. Cause No. CV 15-554 is DISMISSED. The Clerk of the Court shall enter judgment and shall then close its file in Cause No. CV 15-554. A Certificate of Appealability shall not issue in this case. Signed by Judge Cindy K Jorgenson on 1/4/2017. (KEP)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
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Respondent,
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vs.
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Santos Alberto Garcia-Gonzalez,
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Defendant/Movant.
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No. CV 15-554-TUC-CKJ
CR 09-073-TUC-CKJ
ORDER

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Pending before the Court is the Motion Under 28 USCS § 2255 or in the

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Alternative 28 USCS § 2241 (CV 15-554, Doc. 1; CR 09-073, Doc. 41) filed by Movant

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Santos Alberto Garcia-Gonzalez (“Garcia-Gonzalez”). A response (CV 15-554, Doc. 6)

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has been filed.

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I. Procedural Background

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On January 21, 2009, Garcia-Gonzalez was indicted on one count of Re-Entry

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After Deportation (CR 09-073, Doc. 6). On February 18, 2009, Garcia-Gonzalez pleaded

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guilty to the Indictment pursuant to a plea agreement (CR 09-073, Docs. 13 and 15).

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On May 5, 2009, Senior District Court Judge Frank R. Zapata sentenced Garcia-

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Gonzalez. District Judge Zapata adopted the advisory United States Sentence Guidelines

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(“USSG”) as to the illegal re-entry matter in CR 09-073, finding they were appropriate

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based on the information contained in the pre-sentence report (“PSR”) and the lack of

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objection by either counsel. During the sentencing proceeding, counsel and the Court

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discussed the prior convictions of Garcia-Gonzalez. Garcia-Gonzalez had received an

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18 month sentence for driving a vehicle with 307 pounds of marijuana and a 21 month

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sentence for Possession with Intent to Distribute Less than 50 Kilograms of Marijuana

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(i.e., a “backpacker” case). Garcia-Gonzalez was sentenced to a term of forty-six (46)

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months in the custody of the Bureau of Prisons to be followed by a thirty-six (36) month

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term of supervised release. District Judge Zapata also sentenced Garcia-Gonzalez at that

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time for a supervised release violation in CR 06-2172-TUC-FRZ-JR.

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On May 22, 2003, a Petition to Revoke Supervised Release (CR 09-073, Doc. 22)

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was filed. The matter was reassigned to this Court. Additionally, a new case was

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initiated against Garcia-Gonzalez to further address the conduct alleged in the Petition

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to Revoke Supervised Release. See CR 13-928-TUC-CKJ-JR.

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On June 25, 2013, Garcia-Gonzalez admitted the allegations contained in the

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Petition to Revoke Supervised Release pursuant to an agreement with the government

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(CR 09-073, Docs. 28 and 30). On that same date, Garcia-Gonzalez pleaded guilty to Re-

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Entry After Deportation pursuant to a plea agreement in the companion case (CR 13-928,

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Docs. 15 and 16). On September 3, 2013, Visiting District Court Judge Algenon L.

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Marbley sentenced Garcia-Gonzalez to a term of twelve (12) months in the custody of the

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Bureau of Prisons, with the sentence to run consecutive to the sentence in CR 13-928-

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TUC-CKJ-JR. In the companion case, Judge Marbley sentenced Garcia-Gonzalez to a

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term of fifty-seven (57) months in the custody of the Bureau of Prisons, to be followed

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by a thirty-six (36) month term of supervised release.

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On January 30, 2015, Garcia-Gonzalez filed a Motion Under 18 U.S.C. §

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3582(c)(2) in both this case and the companion case (CR 09-073, Doc. 38; CR 13-928,

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Doc. 24)). This Court denied the motions on March 26, 2015.

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On November 30, 2015, Garcia-Gonzalez filed a Motion Under 28 USCS §2255

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or in the Alternative 28 USCS § 2241 (CV 15-554, Doc. 1; CR 09-073, Doc. 41). The

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government filed a response on April 14, 2016 (CV 15-554, Doc. 6).

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II. Legality of 46 Month Term of Imprisonment

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Garcia-Gonzalez argues his forty-six (46) month term of imprisonment is

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unconstitutional pursuant to the “residual clause” of the Armed Career Criminal Act

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(“ACCA”). The government asserts, however, Garcia-Gonzalez was not sentenced

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pursuant to the Act; specifically, his sentence was not enhanced pursuant to the “residual

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clause” of the Act.

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The Supreme Court held in Johnson v. United States, 576 U.S.___, 135 S.Ct. 2551

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(2016), that increasing a defendant’s sentence under the “residual clause” of the ACCA

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denies due process of law because the residual clause in the statutory definition of

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“violent felony” is unconstitutionally vague. 135 S.Ct. at 2557. In Welch v. United

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States, — U.S. —, 136 S.Ct. 1257 (2016), the Supreme Court held that its decision in

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Johnson regarding the vagueness of the residual clause in § 924(e)(2)(B)(ii) announced

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a substantive rule that applies retroactively on collateral review.

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Another district court stated:

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The difficulty is that Johnson has no bearing on Defendant's case. Johnson struck
down the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) defining a “violent
felony” for the purpose of the increased sentence authorized by 18 U.S.C. §
924(e)(1). The residual clause allowed for an enhanced sentence for a prior
conviction that “otherwise involves conduct that presents a serious potential risk
of physical injury to another.” Id. § 924(e)(2)(B)(ii). There are counterparts to the
residual clause in the sentencing guidelines and in some federal statutes.2

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Based on Johnson, the Third Circuit recently held that the residual clause
at U.S.S.G. § 4B1.1.(a)(2) was unconstitutionally vague. United States v.
Calabretta, — F.3d —, 2016 WL 3997215, at *4 (3d Cir. 2016).
However, review of Defendant's case reveals that no such residual clause played
any role in Defendant's conviction and sentence. Defendant was convicted of a
drug-trafficking offense, and his sentence was imposed based on two prior felony
drug offenses.

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United States v. Reaves, No. 1:CR-07-104-03, 2016 WL 4479296, at *2 (M.D. Pa. Aug.
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25, 2016); see also In re Baptiste, 828 F.3d 1337, 1341 (11th Cir. 2016);
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Nevarez-Sanchez v. United States, No. 15CR0191, 2016 WL 5464548, at *2 (S.D. Cal.
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Sept. 28, 2016).
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The Court has reviewed the record in this case, including the transcripts of the
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change of plea (CR 09-073, Doc. 44) and sentencing (CR 09-073, Doc. 45) and the pre-

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sentence report. Like the defendant in Reaves, a residual clause did not play any role in

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Garcia-Gonzalez’s conviction and sentence. Rather, the prior felony conviction that

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enhanced his sentence was a felony drug-trafficking offense, which was a specifically

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enumerated basis for enhancement under the applicable guideline at that time. See

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U.S.S.G. §2L1.2(b)(l)(A)(I). “Because [Garcia-Gonzalez] was not sentenced under the

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ACCA or a like-worded provision of the USSG, and because the provision of the USSG

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under which he was sentenced – § 2L1.2 – is not vague or otherwise unconstitutional, the

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Court finds the motion fails on the merits.” Nevarez-Sanchez v. United States, No.

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15CR0191, 2016 WL 5464548, at *3 (S.D. Cal. Sept. 28, 2016).

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III. Certificate of Appealability (“COA”)

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Rule 11(a), Rules Governing Section 2255 Proceedings, requires that in habeas

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cases the “district court must issue or deny a certificate of appealability when it enters a

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final order adverse to the applicant.” Such certificates are required in cases concerning

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detention arising “out of process issued by a State court”, or in a proceeding under 28

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U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. § 2253(c)(1).

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Here, the Motion is brought pursuant to 28 U.S.C. § 2255. This Court must determine,

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therefore, if a COA shall issue.

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The standard for issuing a COA is whether the applicant has “made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district

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court has rejected the constitutional claims on the merits, the showing required to satisfy

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§ 2253(c) is straightforward: The movant must demonstrate that reasonable jurists would

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find the district court's assessment of the constitutional claims debatable or wrong.”

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Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When

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the district court denies a habeas petition on procedural grounds without reaching the

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prisoner's underlying constitutional claim, a COA should issue when the prisoner shows,

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at least, that jurists of reason would find it debatable whether the petition states a valid
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claim of the denial of a constitutional right and that jurists of reason would find it

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debatable whether the district court was correct in its procedural ruling.” Id. In the

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certificate, the Court must indicate which specific issues satisfy the showing. See 28

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U.S.C. § 2253(c)(3).

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The Court finds that jurists of reason would not find it debatable whether the

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Motion stated a valid claim of the denial of a constitutional right and the Court finds that

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jurists of reason would not find it debatable whether the district court was correct in its

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procedural rulings. A COA shall not issue.

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Any further request for a COA must be addressed to the Court of Appeals. See
Fed. R.App. P. 22(b); Ninth Circuit R. 22-1.

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Accordingly, IT IS ORDERED:

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1. The Motion Under 28 USCS § 2255 or in the Alternative 28 USCS § 2241 (CV

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15-554, Doc. 1; CR 09-073, Doc. 41) is DENIED.

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Cause No. CV 15-554 is DISMISSED.

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The Clerk of the Court shall enter judgment and shall then close its file in

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Cause No. CV 15-554.

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A Certificate of Appealability shall not issue in this case.

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DATED this 4th day of January, 2017.

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