Gamboa-Serrano v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Because the Court finds Johnson v. United States, 135 S. Ct. 2552 (2015) is inapplicable to Petitioner's circumstances, and because Petitioner waived his right to appeal or collaterally attack his sentence and procedurally defaulted the issue by failing to appeal, Court denies Petitioner's motion to vacate. Because reasonable jurists would not finds Court assessment of the claims debatable or wrong, Court declines to issue Petitioner a certificate of appealability. Signed by Judge Cynthia Bashant on 1/31/2017. Criminal Case Number: 15cr2627-BAS (All non-registered users served via U.S. Mail Service) (jah)

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1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 UNITED STATES OF AMERICA, Plaintiff, 14 15 16 17 Case No. 15-cr-2627-BAS 16-cv-1712-BAS ORDER DENYING DEFENDANT’S MOTION TO VACATE SENTENCE UNDER 28 U.S.C. § 2255 v. ALEX A. GAMBOA-SERRANO, [ECF No. 28] Defendant. 18 19 20 Defendant Alex A. Gamboa-Serrano’s motion to vacate presents the question 21 of whether his prior felony conviction for attempted aggravated robbery pursuant to 22 Kansas Statutes Annotated (“KSA”) §§ 21-3427/21-3301 constitutes a “crime of 23 violence” under the Federal Sentencing Guidelines provision governing sentences for 24 unlawful reentry into the United States. U.S.S.G. §2L1.2 (2002). 25 Because the Court finds Defendant waived his right to collaterally attack his 26 sentence and procedurally defaulted the issue, the Court DENIES the motion to 27 vacate. (ECF No. 28.) Furthermore, the Court finds Johnson v. United States, 135 S. 28 Ct. 2552 (2015) inapplicable to Defendant’s situation. –1– 15cr2627 1 I. BACKGROUND 2 On October 13, 2015, Defendant was charged with attempted reentry after 3 deportation in violation of 8 U.S.C. § 1326. (ECF No. 11.) On November 5, 2015, 4 Defendant pled guilty pursuant to a plea agreement. (ECF Nos. 16, 18.) 5 Pursuant to the “Pre-Indictment Fast Track Program” plea, the Government 6 agreed to recommend a -4 departure for “fast track” pursuant to U.S.S.G. § 5K3.1. 7 (Plea Agreement § X(A).) In exchange, Defendant waived “to the full extent of the 8 law” any right to appeal or collaterally attack the conviction or sentence, if the Court 9 imposed a custodial sentence below the high end of the guideline range recommended 10 by the Government pursuant to the plea agreement. (Plea Agreement § XI.) 11 On January 26, 2016, the Court calculated Defendant’s guideline range, adding 12 +16 under U.S.S.G. § 2L1.2(b)(1)(A)(ii) for a prior “crime of violence” because 13 Defendant had been convicted of attempted aggravated robbery in violation of KSA 14 §§ 21-3427/21-3301.1 The Court then sentenced Defendant to 37 months in custody, 15 which was below the high end of the guideline range recommended by the 16 Government pursuant to the plea agreement. (ECF No. 27.) Defendant neither 17 objected to the 16-point enhancement at the time of sentencing, nor appealed the 18 conviction or sentence. 19 20 II. LEGAL STANDARD 21 Under 28 U.S.C. § 2255, a federal court may vacate, set aside or correct a 22 sentence “upon the ground that the sentence was imposed in violation of the 23 Constitution or laws of the United States, or that the court was without jurisdiction 24 to impose such sentence, or that the sentence was in excess of the maximum 25 authorized by law, or is otherwise subject to collateral attack[.]” 28 U.S.C. § 2255(a). 26 27 28 Defendant also had a simultaneous conviction for “aggravated assault (firearm)” and had another prior conviction for reentry after deportation in violation of 8 U.S.C. §1326, for which he had received a custodial sentence of 64 months. (ECF No. 22.) 1 –2– 15cr2627 1 Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings “[t]he judge 2 who receives the motion must promptly examine it[,]” and “[i]f it plainly appears 3 from the motion, any attached exhibits, and the records from the prior proceedings 4 that the [defendant] is not entitled to relief the judge must dismiss the action and 5 direct the clerk to notify the moving party.” 6 To warrant relief, the defendant must demonstrate the existence of an error of 7 constitutional magnitude which had a substantial and injurious effect or influence on 8 the guilty plea or the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); 9 see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold 10 now that Brecht’s harmless error standard applies to habeas cases under section 2255, 11 just as it does to those under section 2254.”) Relief is warranted only where a 12 defendant has shown “a fundamental defect which inherently results in a complete 13 miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974); see also 14 United States v. Gianelli, 543 F.3d 1178, 1184 (9th Cir. 2008). 15 16 III. DISCUSSION 17 A. Waiver of Appeal 18 A plea agreement in which a defendant relinquishes his right to seek relief, 19 direct or collateral, from his conviction or sentence is enforceable. United States v. 20 Abarca, 985 F.2d 1012, 1014 (9th Cir. 1993). “The fact that [a defendant] did not 21 foresee the specific issue that he now seeks to appeal does not place the issue outside 22 the scope of the waiver.” United States v. Johnson, 67 F.3d 200, 202 (9th Cir. 1995). 23 In this case, Defendant agreed to waive his right to attack the conviction or 24 sentence if the Court imposed a sentence contemplated by the plea agreement. (See 25 Plea Agreement ¶ XI.) The Court did so. Thus, Defendant has waived his right to file 26 this collateral attack on his sentence. 27 // 28 // –3– 15cr2627 1 B. Procedural Default 2 Claims that should have been raised on appeal, but were not, are procedurally 3 defaulted. See United States v. Bousley, 523 U.S. 614, 621-22 (1998) (“Habeas 4 review is an extraordinary remedy and ‘will not be allowed to service for an 5 appeal.’”). “Where a defendant has procedurally defaulted a claim by failing to raise 6 it on direct review, the claim may be raised in habeas only if the defendant can first 7 demonstrate either ‘cause’ and actual ‘prejudice’ . . . or that he is ‘actually innocent.’” 8 Id. at 622 (citations omitted). 9 In this case, Defendant does not argue that he is actually innocent. Instead, he 10 argues that his sentence was unconstitutional pursuant to Johnson v. United States, 11 135 S. Ct. 2552 (2015), a case that was decided before Defendant pled guilty in this 12 case. He failed to raise the issue in his negotiated plea agreement. He failed to raise 13 the issue at sentencing and he failed to raise the issue on appeal. Defendant provides 14 no cause for this failure. Thus, the issue is procedurally defaulted. Furthermore, as 15 discussed below, he cannot show actual prejudice from this failure. 16 17 C. Merits 18 Defendant argues that the increase of his guideline range 16 points because of 19 his prior “crime of violence” is unconstitutional after Johnson v. United States, 135 20 S. Ct. 2552 (2015). In Johnson, the Supreme Court found that the “residual clause” 21 of the Armed Career Criminal Act, which enhanced a sentence if a defendant had a 22 prior conviction for a crime that “otherwise involves conduct that presents a serious 23 potential risk of physical injury to another” was unconstitutionally vague. 24 In Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), the Ninth Circuit extended 25 this holding to find the definition of “aggravated felony” in 18 U.S.C. § 16(b) to also 26 be unconstitutionally vague. In the context of an immigration hearing, a non-citizen 27 was removable if he had a prior “aggravated felony” defined, in part, as an offense 28 that “by its nature, involves a substantial risk that physical force against the person –4– 15cr2627 1 or property of another may be used in the course of committing the offense.” 18 2 U.S.C. §16(b). Like the statute in Johnson, the Ninth Circuit found this definition 3 “combine[d] indeterminacy about how to measure the risk posed by a crime with 4 indeterminacy about how much risk it takes for the crime to qualify as a crime of 5 violence.” Dimaya, 803 F.3d at 1117 (internal quotation marks omitted). 6 Unlike the two statutes discussed above, the Guidelines section applied in this 7 case, requires no such calculation of risk. Section 2L1.2(b)(1)(A) enhances a 8 defendant’s sentence 16 points if he has a prior conviction for a “crime of violence” 9 which is defined as a “robbery . . . or any other offense under federal, state, or local 10 law that has an element the use, attempted use, or threatened use of physical force 11 against the person of another.” U.S.S.G. § 2L1.2(b)(1), Application Notes 2 (2002). 12 The Guidelines enhancement does not require a court or defendant to speculate as to 13 whether the prior conviction poses “a serious potential risk of physical injury” or 14 “involves a substantial risk that physical force . . . may be used.” See also Rodriguez 15 v. United States, No. 16-cv-1052-JM, 15-cr-1292-JM, 2016 WL 6124501, at *3 (S.D. 16 Cal. Oct. 20, 2016) (finding “crime of violence” definition in U.S.S.G. § 2L1.2(b)(1) 17 does not turn on determining whether a serious potential risk of injury occurs, thus 18 Johnson is inapplicable). 19 Instead, it clearly applies if a defendant has a conviction for “robbery,” or if 20 the prior conviction has, as an element, the use of physical force. See United States 21 v. Biurquez-Zaragoza, 425 F. App’x 609, 610 (9th Cir. 2011) (unpublished) (quoting 22 United States v. Pereira-Salmeron, 337 F.3d 1148, 1152 (9th Cir. 2003)) (“We have 23 previously held that the enumerated offenses are ‘per se crimes of violence[.]’”). In 24 this case, Defendant’s prior conviction has both. His conviction for attempted 25 aggravated robbery was for the enumerated offense of robbery. See Biurquez- 26 Zaragoza, 425 F. App’x at 610 (attempted robbery qualifies as a “robbery” under 27 §2L1.2). Additionally, at the time of the offense, Kansas law defined “aggravated 28 robbery” as “a robbery committed by a person who is armed with a dangerous –5– 15cr2627 1 weapon or who inflicts bodily harm on any person in the course of such robbery.” 2 KSA § 21-3427. Thus, Defendant’s prior conviction for attempted aggravated 3 robbery had, as an element, the use of physical force.2 4 5 IV. CONCLUSION & ORDER 6 Because this Court finds Johnson v. United States, 135 S. Ct. 2552 (2015), is 7 inapplicable to Defendant’s circumstances, and because Defendant waived his right 8 to appeal or collaterally attack his sentence and procedurally defaulted the issue by 9 failing to appeal, the Court DENIES Defendant’s motion to vacate. (ECF No. 28.) 10 Because reasonable jurists would not find the Court’s assessment of the claims 11 debatable or wrong, the Court DECLINES to issue Defendant a certificate of 12 appealability. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). 13 IT IS SO ORDERED. 14 15 DATED: January 31, 2017 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant also had a prior conviction for “aggravated assault (firearm),” which is also an enumerated offense under § 2L1.2(b)(1)(A) and an offense which has as an element the use of physical force. However, since the Government’s response focuses exclusively on the robbery conviction, and the Court finds that conviction is sufficient to constitute a “crime of violence,” the Court does not further analyze this additional conviction. 2 –6– 15cr2627

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