Olivera v. USA

Filing 3

ORDER terminating 1 Motion to Vacate ; granting 2 Motion to Vacate. Signed by Judge Edward J. Davila on August 3, 2020. (ejdlc2S, COURT STAFF) (Filed on 8/3/2020)Any non-CM/ECF Participants have been served by First Class Mail to the addresses of record listed on the Notice of Electronic Filing (NEF)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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UNITED STATES OF AMERICA,
Plaintiff,

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v.

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United States District Court
Northern District of California

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JORGE LUIS OLIVERA,
Defendant.

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Case No. 5:11-cr-00355-EJD-22
ORDER GRANTING DEFENDANT’S
AMENDED 28 U.S.C. § 2255 MOTION
TO VACATE AND CORRECT
CONVICTION AND SENTENCE
Re: Dkt. No. 978

Before the Court is Defendant Jorge Luis Olivera’s Amended 28 U.S.C. § 2255 motion to

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vacate and correct his conviction and sentence. 28 U.S.C. § 2255 Motion to Vacate (“Mot.”), Dkt.

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978. On July 15, 2020, the Government filed its response to Defendant’s motion and requested

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that the Court resentence Defendant. Government’s Response to 2255 and Request for Plenary

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Re-Sentencing (“Response”), Dkt. 997. Thereafter, on July 30, 2020, Defendant filed his reply.

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Defendant’s Reply to Government’s Response to 28 U.S.C. § 2255 Motion to Vacate (“Reply”),

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Dkt. 1008. For the foregoing reasons, Defendant’s motion is GRANTED.

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I.

BACKGROUND

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On March 10, 2017, Defendant entered into a plea agreement and pled guilty to two

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charges: racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (Count 1) and use of a

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firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 4). See Mot.

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On June 26, 2017, the Court sentenced Defendant to 130 months in custody. Id. Pursuant to the

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sentencing order, Defendant received 70 months for Count 1 and a 60-month mandatory

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consecutive sentence for Count 4. Dkt. 766. Defendant is currently incarcerated at USP Terre

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Case No.: 5:11-cr-00355-EJD-22
ORDER GRANTING DEFENDANT’S AMENDED 28 U.S.C. § 2255 MOTION TO VACATE
AND CORRECT CONVICTION AND SENTENCE
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Haute.
In June 2019, the United States Supreme Court held that 18 U.S.C. § 924(c)’s residual

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clause (which Defendant was charged and sentenced under) is unconstitutionally vague. United

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States v. Davis, 139 S. Ct. 2319, 2323–24 (2019). In light of Davis, Defendant moves under 28

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U.S.C. § 2255 for his conviction and sentence to be vacated, set aside, and corrected.

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II.

LEGAL STANDARD
A federal sentencing court is authorized to grant relief if it concludes that “the sentence

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was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a).

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If the court finds that relief is warranted, it must vacate and set aside the judgment and then
discharge the prisoner, resentence him, grant a new trial, or correct the sentence as may appear

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United States District Court
Northern District of California

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appropriate. Id. § 2255(b). A court may retroactively apply a constitutional rule of criminal

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procedure to a prisoner’s conviction and sentence if: (1) it places a class of conduct beyond the

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authority of the criminal law to proscribe or (2) it announces a watershed rule of criminal

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procedure. See United States v. Brown, 415 F. Supp. 3d 901, 904 (N.D. Cal. 2019).

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III.

DISCUSSION
On June 24, 2019, the United States Supreme Court held that the residual clause—the very

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statute Defendant was convicted under for Count Four—is unconstitutionally vague. Davis, 139

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S. Ct. at 2323–24. The Government does not dispute that Davis applies retroactively or that it

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requires the Court to vacate Defendant’s § 924(c) conviction, i.e., Count Four. See Response at 5.

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Accordingly, the Court GRANTS Defendant’s § 2255 motion and vacates Defendant’s § 924(c)

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conviction and sentence.

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The Government instead argues that this Court should resentence Defendant on the

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remaining count of conviction, i.e. Count One. See id. But, “the usual remedy is to set aside the

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counts on which illegal convictions were obtained and to leave untouched the valid convictions.”

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United States v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999). The court has “wide discretion” to

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issue whatever remedy it deems “appropriate.” Troiano v. United States, 918 F.3d 1082, 1086

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Case No.: 5:11-cr-00355-EJD-22
ORDER GRANTING DEFENDANT’S AMENDED 28 U.S.C. § 2255 MOTION TO VACATE
AND CORRECT CONVICTION AND SENTENCE
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(9th Cir. 2019) (holding that the standard of review for a district court’s determination of the

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appropriate remedy in a § 2255 is abuse of discretion); United States v. Handa, 122 F.3d 690, 691

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(9th Cir. 1997) (Section 2255 confers on district courts “broad and flexible power” to craft an

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appropriate remedy). Indeed, just recently, this Court declined to hold a resentencing hearing in

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two comparable cases. See United States v. Cardenas, 2019 WL 7020193 (N.D. Cal. Dec. 20,

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2019); see also United States v. Cisneros, 2020 WL 4349825 (N.D. Cal. July 29, 2020). As in

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Cardenas and Cisneros, there is no need to hold a resentencing hearing because the Court can

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easily excise the 18 U.S.C. § 924(c) conviction and sentence, while leaving the 18 U.S.C.

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§ 1962(d) count intact. See id. at *2; see also Brown, 415 F. Supp. 3d at 907 (declining to hold a

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resentencing hearing due to the “straightforward nature of correcting [the defendant’s] conviction

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United States District Court
Northern District of California

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and sentence”).

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The Government uses Troiano to argue that when a count is vacated such that it impacts

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the relevant Guideline range, the district court must engage in resentencing. Response at 5–7. In

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fact, in Troiano, the Ninth Circuit specifically noted that “the decision to unbundle a sentencing

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package—that is, to conduct a full resentencing on all remaining counts of conviction when one or

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more counts of a multi-count conviction are undone—rests within the sound discretion of the

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district court.” 918 F.3d at 1087 (emphasis added); see also id. at 1086–87 (“[T]he decision to

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restructure a defendant’s entire sentence when only one of the counts of conviction is found to be

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invalid is discretionary and not . . . mandatory.”). Indeed, in Troiano, “it [was] evident from the

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record . . . that Troiano’s counts of conviction were not actually grouped for sentencing in any

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material way that might have led the district court, in its discretion, to unbundle them for

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resentencing.” Id. at 1087. Hence, nothing in Troiano forbids a court (in its discretion) to decline

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to resentence, so long as the counts of conviction are grouped in such a way that they can be

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unbundled. Id.; see also id. at 1088 (noting that removing the sentencing enhancement for the

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vacated count would not have “any impact on the sentences for the unaffected counts”).

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Case No.: 5:11-cr-00355-EJD-22
ORDER GRANTING DEFENDANT’S AMENDED 28 U.S.C. § 2255 MOTION TO VACATE
AND CORRECT CONVICTION AND SENTENCE
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Here, it is simple to excise the sentence for Count 4. Defendant received 70 months for

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Count 1 and a 60-month mandatory consecutive sentence for Count 4. Hence, the Court can

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simply excise the 60-month mandatory sentence for Count 4 and correct Defendant’s conviction

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and sentence without having a resentencing hearing. See Brown, 415 F Supp. 3d at 907.
Moreover, there are good reasons not to resentence Defendant. USP Terre Haute, where

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Defendant is incarcerated, has reported COVID-19 cases. Additional time could subject

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Defendant to the unnecessary risk of acquiring COVID-19. Moreover, Defendant has engaged in

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post-sentence rehabilitation and has disavowed gang membership and thus cannot associate with

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gang members. For these reasons, the Court declines to have a resentencing hearing. As
Defendant has already served the 70-month custodial sentence on Count 1, see Dkt. 737 (in

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United States District Court
Northern District of California

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custody since January 30, 2014), he must be released forthwith from the custody of the Bureau of

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Prisons.

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IV.

CONCLUSION
For the foregoing reasons, Defendant’s 18 U.S.C. § 924(c) conviction and sentence are

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vacated. As he has already completed his sentence for Count One, he must be released forthwith

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from the custody of the Bureau of Prisons. Nothing in this Order shall affect the five-year

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supervised release ordered for Count One. See Judgment, Dkt. 766. Finally, in light of the

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ongoing COVID-19 pandemic, Defendant must quarantine himself for 14-days upon release.

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IT IS SO ORDERED.
Dated: August 3, 2020
______________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:11-cr-00355-EJD-22
ORDER GRANTING DEFENDANT’S AMENDED 28 U.S.C. § 2255 MOTION TO VACATE
AND CORRECT CONVICTION AND SENTENCE
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