Gaspar-Samano v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Barry Ted Moskowitz on 7/24/2017.(rlu)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,
Plaintiff-Respondent,

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v.

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JESUS GUADALUPE GASPARSAMANO (1),

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Case Nos.: 10-cr-3510-BTM-1
16-cv-1539-BTM
ORDER GRANTING MOTION
FOR RECONSIDERATION,
LIFTING STAY AND DENYING
DEFENDANT’S § 2255 MOTION

Defendant-Petitioner.

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[ECF NOS. 243, 285, 295]

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Jesus Guadalupe Gaspar-Samano (“Defendant”) has filed a motion to

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vacate, set aside, or reduce his sentence pursuant to 28 U.S.C. § 2255, Johnson

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v. United States, 135 S. Ct. 2551 (2015), and Welch v. United States, 136 S. Ct.

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1257 (2016).

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Defendant’s motion pending the Supreme Court’s resolution of Sessions v.

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Dimaya, No. 15-1498, cert. granted sub nom. Lynch v. Dimaya, 137 S. Ct. 31

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(Sept. 29, 2016). (ECF No. 279.) Defendant has moved for reconsideration of the

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stay. (ECF Nos. 285, 295.) For the reasons discussed below, the Court grants

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Defendant’s motion for reconsideration, lifts the stay, and denies Defendant’s

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§ 2255 motion.

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(ECF No. 243.) The Court recently stayed consideration of

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I.

BACKGROUND

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On February 17, 2011, Defendant pled guilty pursuant to a plea agreement

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to one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C.

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§ 1951(a) (Count 1), and one count of possession of a firearm in furtherance of a

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crime of violence, in violation of 18 U.S.C. § 924(c) (Count 2). (ECF No. 70.) The

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“crime of violence” that served as the predicate for Defendant’s conviction on

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Count 2 was his conviction on Count 1 for conspiracy to commit Hobbs Act robbery.

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On August 5, 2011, the Court sentenced Defendant to a term of 37 months on

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Count 1 and 60 months on Count 2, run consecutively for a total term of

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imprisonment of 97 months. (ECF Nos. 169, 170.)

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On June 26, 2015, the Supreme Court decided Johnson, in which it held that

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the residual clause definition of “violent felony” in the Armed Career Criminal Act

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(“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. On October

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19, 2015, the Ninth Circuit decided Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015),

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holding that the reasoning of Johnson applied to the residual clause definition of

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“crime of violence” in 18 U.S.C. § 16(b) so as to render it void for vagueness.

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On June 17, 2016, Defendant filed the instant § 2255 motion. He moves to

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vacate his conviction under § 924(c), arguing that the reasoning of Johnson and

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Dimaya apply to the residual clause definition of “crime of violence” in

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§ 924(c)(3)(B) and lead to the conclusion that the latter statute is likewise

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unconstitutionally vague. He simultaneously applied for leave from the Ninth

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Circuit to proceed with this motion because it appeared to be a successive § 2255

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petition. The parties agreed the case should be stayed until the Ninth Circuit ruled

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on Defendant’s application (see ECF Nos. 248, 257), and the Court thus entered

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a stay (ECF No. 266).

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On September 29, 2016, the Ninth Circuit issued an order denying

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Defendant’s application for permission to file a successive § 2255 petition as

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unnecessary because his first petition was dismissed without prejudice. (ECF No.
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269.) The Court subsequently lifted the stay and set a briefing schedule on the

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§ 2255 motion. (ECF No. 271.)

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On September 29, 2016, the Supreme Court granted certiorari in Dimaya.
Dimaya, No. 15-1498, 137 S. Ct. 31 (Sept. 29, 2016).

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On November 4, 2016, the government filed a response brief in which it

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moved to stay Defendant’s motion pending resolution of Dimaya as well as United

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States v. Begay, in which the Ninth Circuit is anticipated to address the

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constitutionality of § 924(c)(3)(B) in light of Johnson. (ECF No. 246.) On November

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9, 2016, Defendant filed a reply brief in which he opposed a stay. (ECF No. 276.)

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On March 29, 2017, the Ninth Circuit entered an order deferring submission

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of Begay pending the Supreme Court’s resolution of Dimaya. See Order (Doc. No.

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87), United States v. Begay, No. 14-10080 (9th Cir. Mar. 29, 2017). On June 9,

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2017, this Court entered an order staying consideration of Defendant’s § 2255

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motion pending the outcome of Dimaya, noting that the Supreme Court was

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expected to issue its decision no later than June 2017, such that the ensuing stay

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was anticipated to be brief.

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On June 26, 2017, the Supreme Court restored Dimaya to the calendar for

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reargument, meaning it will not be issuing a decision until its next term, which ends

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in June 2018.

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On June 29, 2017, Defendant filed a motion for reconsideration of the Court’s

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stay order in light of the development in Dimaya. On June 30, 2017, the Court

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issued an order in which it advised the parties it was considering vacating the stay

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and ruling on the merits of Defendant’s § 2255 motion, and permitted the parties

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to file supplemental briefing by July 10, 2017.

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II.

DISCUSSION

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28 U.S.C. § 2255 provides, in pertinent part, that a prisoner in custody

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“claiming the right to be released upon the ground that the sentence was imposed

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in violation of the Constitution or laws of the United States … may move the court

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which imposed the sentenced to vacate, set aside or correct the sentence.” 28

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U.S.C. § 2255.

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Defendant moves to vacate his conviction and sentence on Count 2 for

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violating § 924(c), which criminalizes possession of a firearm in furtherance of a

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crime of violence. For purposes of § 924(c), “crime of violence” is defined as

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an offense that is a felony and—

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(A)

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has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or

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that by its nature, involves a substantial risk that physical force against

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the person or property of another may be used in the course of

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committing the offense.

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18 U.S.C. § 924(c)(3). Courts generally refer to subsection (A) of § 924(c)(3) as

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the “force clause,” and subsection (B) as the “residual clause.”

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Here, the predicate “crime of violence” supporting Defendant’s conviction

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and sentence under § 924(c) was his conviction on Count 1 for conspiracy to

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commit Hobbs Act robbery. Defendant argues that conspiracy to commit Hobbs

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Act robbery qualifies as a “crime of violence,” if at all, only under the residual

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clause, § 924(c)(3)(B). He contends that § 924(c)(3)(B) is unconstitutionally vague

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in light of the Johnson decision’s invalidation of the residual clause definition of

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“violent felony” in the ACCA, and that his conviction on Count 2 must therefore be

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vacated.

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The government responded by seeking a stay of Defendant’s motion

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pending the Supreme Court’s resolution of Dimaya, and the Ninth Circuit’s

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resolution of Begay. The government also argues that Defendant’s motion is
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procedurally barred because his plea agreement included a provision waiving his

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right to collateral attack, and because he defaulted on his claim for failure to raise

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it on direct appeal.1 As to the merits, the government maintains that the reasoning

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of Johnson does not apply to § 924(c)(3)(B), and that even if the Court does find §

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924(c)(3)(B) unconstitutionally vague, conspiracy to commit Hobbs Act robbery

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remains a crime of violence under the force clause, § 924(c)(3)(A).

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A. Reconsideration Of Stay Order

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The Court first addresses Defendant’s motion for reconsideration of the

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Court’s June 9, 2017 order staying this case pending the Supreme Court’s

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issuance of a decision in Dimaya. Defendant contends that now that it is clear no

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decision will be forthcoming in Dimaya until the Supreme Court’s next term ending

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in June 2018, the Court should lift the stay because he will be prejudiced by the

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additional, unanticipated delay.2

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The Court agrees and will lift the stay. As discussed below, post-Johnson,

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the courts have been divided with regard to the constitutionality of § 924(c)(3)(B).

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Since the language of the residual clause at issue in Dimaya is virtually identical

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to the text of § 924(c)(3)(B), the Court anticipated a decision from the Supreme

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Court in Dimaya would effectively control the outcome of Defendant’s motion.

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Indeed, in Begay, in which the Ninth Circuit is considering the constitutionality of

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§ 924(c)(3)(B), the Ninth Circuit has deferred its decision pending resolution of

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On August 10, 2016, in response to the government’s argument that similar § 2255 motions filed by
his co-defendants violated the provision of the plea agreement in which they waived the right to
collateral attack, Defendant filed a motion for declaratory and injunctive relief seeking a determination
whether he was in breach of the plea agreement. (ECF No. 258.) He withdrew the motion after the
government changed its position. (ECF Nos. 264, 265.)
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After the Court issued its stay order on June 9, 2017, on June 14, 2017, Defendant filed a
supplemental brief indicating he did not oppose a stay through the end of June 2017. (ECF No. 282.)
It was not until June 29, 2017, that Defendant sought reconsideration of the stay on the ground that
because his anticipated release date is September 2, 2017, a continued stay is prejudicial.
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Dimaya. See Order, Begay, No. 14-10080 (9th Cir. Mar. 29, 2017).

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Although it would be helpful to know the result of Dimaya before ruling on

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this case, in considering the wisdom of a stay based on judicial economy, district

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courts faced with habeas petitions must consider the potential prejudice of a stay

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to the defendant. Yong v. I.N.S., 208 F.3d 1116, 1117-19 (9th Cir. 2000). When

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the Court stayed this case pending the outcome of Dimaya, it believed the

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Supreme Court’s decision would be issued in a matter of weeks, no later than June

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2017. While the Ninth Circuit’s decision in Begay will almost certainly resolve the

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issue presented here, as of the date of this order, Begay remains stayed, and it

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appears it will not be decided until after Dimaya. The unanticipated delay in

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resolution of Dimaya is a development that warrants reconsideration of the stay.

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The Court finds that any benefit that might be conferred by waiting for a decision

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in Dimaya or Begay is outweighed by the prejudice to Defendant of further delay.

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Accordingly, the Court grants Defendant’s motion for reconsideration and
lifts the stay.

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B. Merits of Defendant’s § 2255 Motion

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In United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993), the Ninth

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Circuit held that conspiracy to commit Hobbs Act robbery qualifies as a crime of

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violence pursuant to the residual clause of § 924(c)(3)(B). Mendez remains good

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law, so there is no question that Defendant’s conviction on Count 1 qualifies as a

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predicate for his § 924(c) conviction under the residual clause. Defendant argues

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that his conviction and sentence for violating § 924(c) must be vacated because

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the residual clause is no longer constitutional in light of the Supreme Court’s

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decision in Johnson.

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Since Johnson was decided, dozens of courts have been presented with

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vagueness challenges to the constitutionality of § 924(c)(3)(B). The courts are

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divided with regard to the resolution of this issue. On the one hand, the Second,

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Fifth, Sixth, Eighth, and Eleventh Circuits have upheld § 924(c)(3)(B) against post6

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Johnson void-for-vagueness challenges. See United States v. Hill, 832 F.3d 135,

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145 (2d Cir. 2016); United States v. Davis, --- Fed. Appx. ----, 2017 WL 436037, at

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*2 (5th Cir. 2017) (unpublished); United States v. Taylor, 814 F.3d 340, 375-79

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(6th Cir. 2016); United States v. Prickett, 839 F.3d 697, 699–700 (8th Cir. 2016);

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Ovalles v. United States, --- F.3d ----, 2017 WL 2829371, at *4-8 (11th Cir. 2017).

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The Seventh Circuit, on the other hand, has held § 924(c)(3)(B) unconstitutionally

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vague under the reasoning of Johnson. See United States v. Cardena, 842 F.3d

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959, (7th Cir. 2016). District courts in other circuits, including the Ninth Circuit, are

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split. Compare, e.g., United States v. Bell, 158 F. Supp. 3d 906, 921-24 (N.D. Cal.

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2016) (residual clause of § 924(c)(3)(B) unconstitutional in light of Johnson and

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Dimaya); United States v. Baires-Reyes, 191 F. Supp. 3d 1046, 1051-53 (N.D. Cal.

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2016) (same); United States v. Smith, 215 F. Supp. 3d 1026, 1035-36 (D. Nev.

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2016) (same); United States v. Herr, No. 16-cr-10038-IT, 2016 U.S. Dist. LEXIS

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144201, at *4-11 (D. Mass. Oct. 18, 2016) (same); United States v. Edmundson,

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153 F. Supp. 3d 857, 861-64 (D. Md. 2015) (same); with United States v. Lott, No.

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95cr0072 WQH, 16cv1575 WQH, 2017 WL 553467, at *3 (S.D. Cal. Feb. 9, 2017)

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(residual clause of § 924(c)(3)(B) remains constitutional after Johnson); United

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States v. Tsarnaev, 157 F. Supp. 3d 57, 71-74 (D. Mass. 2016) (same); United

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States v. Green, No. 15-cr-00526, 2016 WL 277982, at *3-5 (D. Md. Jan. 22, 2016)

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(same).

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The courts that have considered the issue in this District have rejected post-

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Johnson challenges to the constitutionality of § 924(c)(3)(B). Lott, No. 95cr0072

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WQH, 16cv1575 WQH, 2017 WL 553467, at *3; United States v. Sehorn,

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95cr0072-2 WQH, 2017 WL 1336872 (S.D. Cal. Feb. 17, 2017); United States v.

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Nelson, 95cr0072-4 WQH, 2017 WL 1346638 (S.D. Cal. Feb. 17, 2017);

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Hernandez v. United States, No. 10-CR-3173-H-3, 2016 WL 7250676, at *3–4

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(S.D. Cal. Nov. 7, 2016); Averhart v. United States, No. 11-cr-1861 DMS, 2016

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U.S. Dist. LEXIS 184031 (Nov. 21, 2016); Mondragon-Hernandez v. United States,
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NO. 10-CR-3173-H-1; 16-CV-1537-H, 2017 U.S. Dist. LEXIS 41720 (S.D. Cal.

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Mar. 22, 2017).

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The Court finds the reasoning of courts that have rejected challenges to the

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constitutionality of § 924(c)(3)(B) persuasive. See, e.g., Taylor, 814 F.3d at 375-

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79; Lott, 2017 WL 553467 at *3. These courts have reasoned as follows. Johnson

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analyzed the residual clause of the ACCA, which provides that a “violent felony” is

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a felony that “(ii) is burglary, arson, or extortion, involves use of explosives, or

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otherwise involves conduct that presents a serious potential risk of physical injury

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to another.” 18 U.S.C. § 924(e)(2)(B) (residual clause underlined). The Supreme

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Court reasoned that the ACCA’s residual clause was unconstitutionally vague

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because (1) it created uncertainty with regard to how judges should estimate the

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“serious potential risk of physical injury” posed by a crime, and as to the quantum

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of potential risk that qualified as “serious,” (2) the list of dissimilar enumerated

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offenses that preceded the residual clause only added to the uncertainty over its

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interpretation, and (3) experience had proven the clause to be unworkably vague,

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as courts had struggled to apply it in practice. Johnson, 135 S. Ct. at 2556-60.

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Courts that have rejected challenges to § 924(c)(3)(B) based on the

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reasoning of Johnson have found that material differences between the residual

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clause of § 924(e)(2)(B)(ii) and § 924(c)(3)(B) undermine the force of the Supreme

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Court’s reasoning with regard to the latter statute.

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§ 924(c)(3)(B) requires courts to determine whether a crime “involves a substantial

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risk that physical force” may be used by the offender, which is a less attenuated

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determination than whether a crime will create a “serious potential risk of physical

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injury to another.” See Taylor, 814 F.3d at 376-77. Second, unlike the ACCA, the

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residual clause of § 924(c)(3)(B) is not preceded by a list of dissimilar crimes, a

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textual difference that makes the ACCA’s residual clause the harder of the two to

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interpret. See id. at 377. Third, unlike the history of interpretation of the ACCA

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residual clause, courts have not experienced “repeated attempts and repeated
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failures to craft a principled and objective standard” out of § 924(c)(3)(B). See id.

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at 377-78 (quoting Johnson, 135 S. Ct. at 2558).

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Courts that have reached the opposite conclusion regarding the

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constitutionality of § 924(c)(3)(B) have relied heavily on Dimaya. See, e.g., Bell,

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158 F. Supp. 3d at 921-24; United States v. Lattanaphom, 159 F. Supp. 3d 1157,

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1162-64 (E.D. Cal. 2016). In Dimaya, the Ninth Circuit reasoned that 18 U.S.C. §

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16(b)3 suffered from the same constitutional infirmities as the ACCA’s residual

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clause, because use of the categorical approach to determine which offenses are

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“crimes of violence” within the meaning of § 16(b) requires the same judicial

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hypothecating, and involves similar double indeterminacy with regard to the

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amount of risk required, so as to render the reasoning of Johnson equally

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applicable to § 16(b). Dimaya, 803 F.3d at 1116-17. Courts that have followed

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Dimaya’s holding with regard to the constitutionality of § 924(c)(3)(B) have

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reasoned that since § 16(b) is materially identical to § 924(c)(3)(B), Dimaya’s

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reasoning should apply equally to § 924(c)(3)(B), and the same result should

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pertain to the latter statute. See Lattanaphom, 159 F. Supp. 3d at 1164 (“The

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Dimaya court extended Johnson to a statute with identical language as that in the

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§ 924(c) residual clause and cannot be distinguished.”). However, other courts,

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including from within the Ninth Circuit, have rejected the notion that Dimaya is

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controlling with regard to the fate of § 924(c)(3)(B). See, e.g., Lott, 2017 WL

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553467 at *4. Such courts have noted that the Dimaya court explicitly limited its

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holding and stated its decision did “not reach the constitutionality of applications of

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18 U.S.C. § 16(b) outside of 8 U.S.C. § 1101(a)(43)(F) or cast doubt on the

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18 U.S.C. § 16 provides:
The term "crime of violence" means-(a) an offense that has as an element the use, attempted use, or threatened use of physical force against
the person or property of another, or
(b) any other offense that is a felony and 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. § 16.
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constitutionality of 18 U.S.C. § 16(a)’s definition of a crime of violence.” Dimaya,

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803 F.3d at 1120 n.17; Lott, 2017 WL 553467 at *4 (“Dimaya does not control the

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issue of the constitutionality of § 924(c)(3)(B).”). The Court agrees with the latter

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line of reasoning that by virtue of this so-called “cabining” footnote, the analysis of

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Dimaya is not controlling with regard to the constitutionality of § 924(c)(3)(B).4

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The Court finds the reasoning of the courts that have rejected post-Johnson

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due process challenges to § 924(c)(3)(B) persuasive, and therefore concludes, as

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they did, that § 924(c)(3)(B) is not unconstitutionally vague. Because Defendant’s

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conviction for conspiracy to commit Hobbs Act robbery remains a crime of violence

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under § 924(c)(3)(B), his motion to vacate his conviction for violating § 924(c) is

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denied. Also, since the Court denies Defendant’s motion on this ground, the Court

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need not, and does not, address the government’s argument that conspiracy to

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commit Hobbs Act robbery qualifies as a crime of violence under § 924(c)(3)(A),

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or its contention that Defendant’s motion is procedurally barred. Finally, since

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Defendant’s motion is being denied, the Court finds there is no conflict in counsel’s

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representation of Defendant at this stage of the proceedings, although this issue

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would merit further consideration going forward if Defendant’s motion had been

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granted.

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That the Ninth Circuit, in United States v. Hernandez-Lara, 817 F.3d 651 (9th Cir. 2016), relied on Dimaya to
hold an 8-level sentencing enhancement under U.S.S.G. § 2L1.2(b)(1)(C) unconstitutional to the extent it
incorporated § 16(b) does not suggest that the Ninth Circuit regards Dimaya as having a reach that extends
outside the context of 8 U.S.C. § 1101(a)(43)(F) and 18 U.S.C. § 16(b). The Guideline provision at issue in
Hernandez-Lara defined “aggravated felony” by reference to 8 U.S.C. § 1101(a)(43)(F), which incorporates
§ 16(b). See 817 F.3d at 652. Thus, the constitutional issue presented in Hernandez-Lara fell squarely within the
scope of Dimaya’s limited holding.
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III.

CONCLUSION AND ORDER
For the foregoing reasons, the Court GRANTS Defendant’s motion for

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reconsideration, LIFTS the stay, and DENIES Defendant’s motion to vacate, set

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aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Defendant is

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granted a certificate of appealability.

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IT IS SO ORDERED.
Dated: July 24, 2017

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