Mondragon-Hernandez v. USA

Filing 2

ORDER: (1) Denying § 2255 Motion to Vacate, Set Aside, or Correct the Sentence (Doc. Nos. 240 and 246 in 10-cr-3173-H); and (2) Granting Certificate of Appealability. Signed by Judge Marilyn L. Huff on 3/22/2017.(ag)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JULIAN MONDRAGONHERNANDEZ,
Petitioner,

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CASE NO. 10-CR-3173-H-1
16-CV-1537-H
ORDER:
(1) DENYING § 2255
MOTION TO VACATE, SET
ASIDE, OR CORRECT THE
SENTENCE; AND

vs.

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[Doc. Nos. 240, 246 in 10-cr3173.]

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UNITED STATES OF AMERICA,

(2) GRANTING
CERTIFICATE OF
APPEALABILITY

Respondent.

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On October 7, 2016, Petitioner/Defendant Julian Mondragon-Hernandez,

22 represented by Federal Defenders, filed in the United States District Court for the
23 Southern District of California a motion pursuant to 28 U.S.C. § 2255 to vacate, set
24 aside, or correct the sentence by a person in federal custody. (Doc. Nos. 240, 246.) On
25 December 19, 2016, the Government filed a response in opposition to Defendant’s
26 motion. (Doc. No. 257.) On January 12, 2017, Defendant filed a reply in support of
27 his motion. (Doc. No. 259.) On March 22, 2017, the Court took the matter under
28 submission. (Doc. No. 263.) For the reasons discussed below, the Court denies
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1 Defendant’s § 2255 motion.

Background

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On August 5, 2010, the Government filed an indictment charging Defendant,

4 among others, with a single count of conspiracy to possess with intent to distribute
5 cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. No. 1.) On April 13,
6 2011, the Government filed a six-count superceding indictment charging Defendant in
7 count 1 with conspiracy to possess with intent to distribute cocaine, in violation of 21
8 U.S.C. §§ 841(a)(1) and 846, and criminal forfeiture, in violation of 18 U.S.C. § 924(d)
9 and 28 U.S.C. § 2461(c); in count 2 with conspiracy to affect commerce by robbery and
10 extortion, in violation of 18 U.S.C. § 1951(a); in count 3 with possession of a firearm
11 in furtherance of a crime of violence and a drug trafficking offense in violation of 18
12 U.S.C. § 924(c)(1)(i) and aiding and abetting in violation of 18 U.S.C. § 2; and in count
13 4 with illegal alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5)(A)
14 and 924(a)(2). (Doc. No. 51.)
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Defendant proceeded to a jury trial. On November 17, 2011, the jury returned

16 a verdict finding Defendant guilty of all four counts charged against him in the
17 superceding indictment. (Doc. Nos. 97, 103.)
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Prior to sentencing, U.S. Probation prepared a Presentence Report. (Doc. No.

19 116.) The PSR calculated Defendant’s total combined offense level as 36 with a
20 criminal history category of II for counts 1, 2, and 4, resulting in an advisory guidelines
21 range of 210-262 months for those counts. (Id. at 11-12, 14.) The PSR also reported
22 that Defendant’s conviction for violation of § 924(c) subjected him to a mandatory 6023 month sentence to be served consecutive to the other counts. (Id. at 12, 14.) On May
24 28, 2012, the Government filed a sentencing summary chart recommending a sentence
25 of 210 months in custody for counts 1, 2 and 4 and the mandatory 60 months in custody
26 for count 3, resulting in a total custodial sentence of 270 months. (Doc. No. 156.) On
27 June 10, 2012, Defendant filed a sentencing summary chart recommending a sentence
28 of 120 months. (Doc. No. 161.)
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1

The Court held a sentencing hearing on June 14, 2012. (Doc. Nos. 163, 185.)

2 At sentencing, the Court calculated Defendant’s total combined adjusted offense level
3 for counts 1, 2, and 4 as level 34 and his criminal history category as II, resulting in an
4 advisory guidelines range of 168-210 months. (Doc. No. 185 at 24.) After considering
5 the § 3553(a) factors, the Court sentenced Defendant to 168 months in custody for
6 counts 1 and 2 and 120 months in custody for count 4 with counts 1, 2 and 4 to run
7 concurrently and to the mandatory 60 months in custody for count 3 to run consecutive
8 to the other counts, resulting in a total custodial sentence of 228 months. (Id. at 25, 31.)
9 The Court entered judgment on June 18, 2012. (Doc. No. 168.)
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On June 20, 2012, Defendant appealed his conviction and sentence. (Doc. No.

11 169.) On November 27, 2013, the Ninth Circuit affirmed Defendant’s conviction and
12 sentence. (Doc. No. 208.)
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On January 20, 2015, Defendant filed a motion pursuant to 28 U.S.C. § 2255 to

14 vacate his federal prison sentence, alleging claims of ineffective assistance of counsel.
15 (Doc. No. 218.) On April 22, 2015, the Court denied Defendant’s § 2255 motion and
16 denied Defendant a certificate of appealability. (Doc. No. 230.) Defendant sought a
17 certificate of appealability from the Ninth Circuit, (Doc. No. 231), and on February 26,
18 2016, the Ninth Circuit denied Defendant’s request for a certificate of appealability.
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By the present motion, Defendant again moves pursuant to 28 U.S.C. § 2255 to

21 vacate his federal prison sentence.1 (Doc. No. 240.) In the motion, Defendant argues
22 that his 60-month sentence for possession of a firearm in furtherance of a crime of
23 violence in violation of 18 U.S.C. § 924(c)(1) should be vacated because under the
24 Supreme Court’s recent decision in Johnson v. United States, 135 S. Ct. 2551 (2015),
25 conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951(a) no longer qualifies
26 as a “crime of violence” under § 924(c)(3). (Id. at 1-2, 4-15.)
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On October 4, 2016, the Ninth Circuit granted Defendant’s application for
28 authorization to file a second of successive 28 U.S.C. § 2255 motion. (Doc. No. 246-1.)

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Discussion

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Legal Standards for § 2255 Motion

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A sentencing court may “vacate, set aside or correct the sentence” of a federal

4 prisoner if it concludes that “the sentence was imposed in violation of the Constitution
5 or laws of the United States.” 28 U.S.C. § 2255(a). Claims for relief under § 2255
6 must be based on a constitutional or jurisdictional error, “‘a fundamental defect which
7 inherently results in a complete miscarriage of justice,’” or a proceeding “‘inconsistent
8 with the rudimentary demands of fair procedure.’” United States v. Timmreck, 441
9 U.S. 780, 783-84 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A
10 district court may deny a § 2255 motion without holding an evidentiary hearing if “the
11 petitioner fails to allege facts which, if true, would entitle him to relief, or the petition,
12 files and record of the case conclusively show that he is entitled to no relief.” United
13 States v. Rodriguez-Vega, 797 F.3d 781, 792 (9th Cir. 2015); see 28 U.S.C. § 2255(b);
14 United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) (“Where a prisoner’s [§ 2255]
15 motion presents no more than conclusory allegations, unsupported by facts and refuted
16 by the record, an evidentiary hearing is not required.”).
17 II.

Analysis

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In Johnson, the Supreme Court considered the constitutionality of the residual

19 clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii). See
20 Johnson, 135 S. Ct. at 2555. “Under the Armed Career Criminal Act of 1984, a
21 defendant convicted of being a felon in possession of a firearm faces more severe
22 punishment if he has three or more previous convictions for a ‘violent felony,’ a term
23 defined” by 18 U.S.C. § 924(e)(2)(B). Id. 18 U.S.C. § 924(e)(2)(B) provides:
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the term “violent felony” means 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[.]
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Under § 924(e)(2)(B)(ii)’s residual clause, the ACCA defined the term “violent
felony” to include “any crime punishable by imprisonment for a term exceeding one
year . . . that . . . involves conduct that presents a serious potential risk of physical
injury to another.” 18 U.S.C. § 924(e)(2)(B); accord Johnson, 135 S. Ct. at 2555–56.
The Supreme Court held the provision void for vagueness, and, therefore, also held that
“imposing an increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due process.” Johnson, 135 S. Ct.
at 2563 (“We are convinced that the indeterminacy of the wide-ranging inquiry required
by the residual clause both denies fair notice to defendants and invites arbitrary
enforcement by judges. Increasing a defendant’s sentence under the clause denies due
process of law.”). Subsequently, in Welch v. United States, 136 S. Ct. 1257, 1268
(2016), the Supreme Court held that “Johnson announced a substantive rule that has
retroactive effect in cases on collateral review.”
In the present motion, Defendant argues that under Johnson, conspiracy to
commit Hobbs Act robbery under 18 U.S.C. § 1951(a) is no longer a “crime of
violence” under 18 U.S.C. § 924(c). (Doc. No. 240 at 4-15.) 18 U.S.C. § 924(c)(3)
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.

23 Defendant’s argument that conspiracy to commit Hobbs Act robbery no longer qualifies
24 as a crime of violence under § 924(c)(3) is two-part. First, Defendant argues that
25 conspiracy to commit Hobbs Act robbery cannot qualify as a crime of violence under
26 the definition set forth in subdivision (B) because that clause is void for vagueness in
27 light of the Supreme Court’s decision in Johnson. (Doc. No. 240 at 5-6.) Second,
28 Defendant argues that conspiracy to commit Hobbs Act robbery also does not qualify
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1 as a crime of violence under the definition set forth in subdivision (A), which Defendant
2 refers to as the “force clause” because, as Defendant contends, conspiracy to commit
3 Hobbs Act robbery does not have as an element the use or threatened use of physical
4 force.2 (Id. at 6-9.)
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Defendant has failed to show that he is entitled to post-conviction relief because

6 under Ninth Circuit precedent, conspiracy to commit Hobbs Act robbery in violation
7 of § 1951 qualifies as a crime of violence under § 924(c)(3)(B). In United States v.
8 Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993), the Ninth Circuit held that “conspiracy
9 to rob in violation of § 1951 . . . is a ‘crime of violence’ under subsection (B)” of §
10 924(c)(3).
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Defendant argues that § 924(c)(3)(B) is unconstitutionally vague under the

12 Supreme Court’s decision in Johnson. (Doc. No. 240 at 4-6.) But Johnson dealt with
13 the constitutionality of § 924(e)(2)(B)(ii), not § 924(c)(3)(B). See 135 S. Ct. at
14 2555–56. Although the Ninth Circuit has not yet addressed this issue, several circuit
15 courts have held that the Supreme Court’s decision in Johnson does not render §
16 924(c)(3)(B) unconstitutionally vague. See, e.g., United States v. Prickett, 839 F.3d
17 697, 699-700 (8th Cir. 2016) (“Johnson does not render § 924(c)(3)(B)
18 unconstitutionally vague”); United States v. Hill, 832 F.3d 135, 137, 145-50 (2d Cir.
19 2016); United States v. Taylor, 814 F.3d 340, 375-79 (6th Cir. 2016); United States v.
20 Davis, No. 16-10330, __ Fed. App’x __, 2017 WL 436037, at *2 (5th Cir. Jan. 31,
21 2017) (“We join several other circuits in concluding that Johnson does not invalidate
22 § 924(c)(3)(B).”). The Court finds the reasoning and conclusions set forth in these
23 circuit decisions persuasive.
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Defendant argues that the Court should not follow these circuit precedents and

25 should instead rely on the Ninth Circuit’s decision in Dimaya v. Lynch, 803 F.3d 1110
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Defendant also argues that the underlying offense of Hobbs Act robbery does not
27 qualify as a crime of violence under the force clause because it does not require the use or
threatened use of violent physical force or require the intentional use or threatened use of
28 physical force. (Doc. No. 240 at 9-13.)

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1 (9th Cir. 2015) to find that § 924(c)(3)(B) is unconstitutional vague.3 (Doc. No. 240 at
2 5-6; Doc. No. 259 at 2-3.) In Dimaya, the Ninth Circuit held that, under the Supreme
3 Court’s decision in Johnson, the definition of “crime of violence” set forth in 18 U.S.C.
4 § 16(b) as incorporated into 8 U.S.C. § 1101(a)(43)(F) is unconstitutionally vague. See
5 Dimaya v. Lynch, 803 F.3d at 1120; see also United States v. Hernandez-Lara, 817 F.3d
6 651, 652-53 (9th Cir. 2016) (holding that 18 U.S.C. § 16(b) as incorporated into
7 U.S.S.G. § 2L1.2(b)(1)(C) is unconstitutionally vague). But in Dimaya, the Ninth
8 Circuit panel expressly noted that its holding was limited to the constitutionality of 18
9 U.S.C. § 16(b) as incorporated into 8 U.S.C. § 1101(a)(43)(F). See Dimaya, 803 F.3d
10 at 1120 n.17 (“Our decision does not reach the constitutionality of applications of 18
11 U.S.C. § 16(b) outside of 8 U.S.C. § 1101(a)(43)(F) or cast any doubt on the
12 constitutionality of 18 U.S.C. § 16(a)’s definition of a crime of violence.”). That
13 Dimaya’s holding is limited to the constitutionality of 18 U.S.C. § 16(b) as incorporated
14 into 8 U.S.C. § 1101(a)(43)(F) is important. Although 18 U.S.C. § 16(b) shares the
15 same language as § 924(c)(3)(B), the issue of whether 18 U.S.C. § 16(b) as incorporated
16 into 8 U.S.C. § 1101(a)(43)(F) is unconstitutional after Johnson is not the same issue
17 as whether 18 U.S.C. § 924(c)(3)(B) is unconstitutional after Johnson. For example,
18 although the Sixth Circuit has agreed with the Ninth Circuit’s holding in Dimaya and
19 has also held that 18 U.S.C. § 16(b) as incorporated into 8 U.S.C. § 1101(a)(43)(F) is
20 unconstitutionally vague after Johnson, see, e.g., Shuti v. Lynch, 828 F.3d 440, 441,
21 450-51 (6th Cir. 2016), the Sixth Circuit has also held that Johnson does not render
22 U.S.C. § 924(c)(3)(B) unconstitutionally vague. See, e.g., Taylor, 814 F.3d at 375-79.
23 Thus, Dimaya does not control the present issue in this case – the constitutionality of
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The Court notes that the Supreme Court granted a petition for writ of certiorari in
28 Dimaya. See Lynch v. Dimaya, No. 15-1498, 2016 WL 3232911 (U.S. Sept. 29, 2016).

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1 § 924(c)(3)(B).4 See Lott, 2017 WL 553467, at *4 (“Dimaya does not control the issue
2 of the constitutionality of § 924(c)(3)(B).”).

In sum, because conspiracy to commit Hobbs Act robbery qualifies as a crime of

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4 violence under § 924(c)(3)(B), Defendant has failed to show that his sentence was
5 imposed in violation of the Constitution or the laws of the United States. Accordingly,
6 the Court denies Defendant’s § 2255 motion.5
7 III.

Certificate of Appealability

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An appeal cannot be taken from the district court’s denial of a § 2255 motion

9 unless a certificate of appealability is issued. See 28 U.S.C. § 2253(c)(1); Muth v.
10 Fondren, 676 F.3d 815, 818 (9th Cir. 2012). A certificate of appealability may issue
11 only if the defendant “has made a substantial showing of the denial of a constitutional
12 right.” 28 U.S.C. § 2253(c)(2). When a district court has denied the claims in a § 2255
13 motion on the merits, a defendant satisfies the above requirement by demonstrating
14 “that reasonable jurists would find the district court’s assessment of the constitutional
15 claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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Although the Court denies Defendant’s § 2255 motion on the merits, the Court

17 concludes that reasonable jurists could find the Court’s assessment of Defendant’s
18 claims debatable.

Accordingly, the Court grants Defendant a certificate of

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The Court acknowledges that several district courts within the Ninth Circuit have
relied on Dimaya to hold that § 924(c)(3)(B) is unconstitutionally vague after Johnson. See,
e.g., United States v. Shumilo, No. CR 09-939-GW-51, 2016 WL 6302524, at *3-5 (C.D. Cal.
Oct. 24, 2016); United States v. Bell, 158 F. Supp. 3d 906, 921-24 (N.D. Cal. 2016); United
States v. Lattanaphom, 159 F. Supp. 3d 1157, 1162-64 (E.D. Cal. 2016). The Court does not
find these district court decisions persuasive as they failed to adequately address or even
address at all the footnote in Dimaya expressly stating that its holding is limited to the
constitutionality of 18 U.S.C. § 16(b) as incorporated into 8 U.S.C. § 1101(a)(43)(F). Further,
the Court notes that other district courts within the Ninth Circuit and within this district have
also held that Johnson does not render § 924(c)(3)(B) unconstitutionally vague. See, e.g.,
United States v. Lott, No. 16CV1575 WQH, 2017 WL 553467, at *3-4 (S.D. Cal. Feb. 9,
2017); United States v. Averhart, No. 11-CR-1861-DMS, Docket No. 59 (S.D. Cal. Nov. 21,
2016).
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Because the Court denies Defendant’s § 2255 motion on the merits, the Court declines
to address the Government’s additional argument that the motion should be denied because
28 Defendant procedurally defaulted his claim. (Doc. No. 257 at 12-15.)
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1 appealability.

Conclusion

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For the reasons above, the Court denies Defendant’s motion under 28 U.S.C. §

4 2255 to vacate, set aside, or correct his sentence. In addition, the Court grants
5 Defendant a certificate of appealability.
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IT IS SO ORDERED.

7 DATED: March 22, 2017

________________________________
MARILYN L HUFF, District Judge
UNITED STATES DISTRICT COURT

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