Serrano-Perez v. USA

Filing 2

ORDER denying Petition to Vacate Sentence Under 28 USC 2255. Signed by Judge Larry Alan Burns on 10/27/16.(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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UNITED STATES OF AMERICA,

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CASE NO. 15CR0286/16CV1716-LAB
Plaintiff,

ORDER DENYING MOTION TO
VACATE SENTENCE

vs.
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JESUS MARIO SERRANO-PEREZ,

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Defendant.

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Jesus Mario Serrano-Perez pled guilty to illegally reentering the United States in

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violation of 8 U.S.C. § 1326, and was to sentenced to 72 months in September 2015. His

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sentence was enhanced because he had previously been convicted of a “crime of violence.”

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See United States Sentencing Guidelines (USSG), § 2L1.2, n. 1(B)(iii) (defining the term).

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Serrano-Perez waived his right to appeal in exchange for sentencing concessions from the

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government, so his sentence became final when the Court signed the Judgment on

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September 14, 2015.

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Serrano-Perez has now filed a motion under 28 U.S.C. § 2255 to vacate the

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sentence. He contends that the Supreme Court’s recent ruling in Johnson v. United States,

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__ U.S. __, 135 S. Ct. 2551 (2015) requires that the sentence be vacated. In Johnson, the

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Court held that part of the Armed Career Criminal Act, 18 U.S.C. § 924(e) – in particular,

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language in the so-called “residual clause” that authorized a sentence enhancement based

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on a finding that a defendant’s prior conviction “present[ed] a serious potential risk of

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15cr0286/16cv1716

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physical injury to another” – was unconstitutionally vague and couldn’t be relied on to

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enhance a sentence. But the holding in Johnson doesn’t implicate the definition of “crime

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of violence” as used in section 2L1.2 of the Sentencing Guidelines, which does not include

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the residual clause language. Instead, section 2L1.2's definition authorizes a sentence

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enhancement when the defendant has either been convicted of certain enumerated offenses

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or of any offense that “has as an element the use, attempted use, or threatened use of

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physical force against the person of another.” Enhancing a defendant’s sentence based on

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his prior conviction is proper when the elements of the prior conviction match the generic

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definition of a “crime of violence” under federal law. Taylor v. United States, 495 U.S. 575,

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602 (1990).

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Before he was sentenced in this case, Serrano-Perez was convicted of inflicting

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corporal injury on a spouse in violation of California Penal Code § 273.5(a), PSR1 at 7. The

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elements of that crime categorically match the elements of the crime of violence definition

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under section 2L1.2. Banuelos-Ayon v. Holder, 611 F.3d 1080, 1083-84 (9th Cir. 2010). See

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also United States v. Ayala-Nicanor, 659 F.3d 744, 752 (9th Cir. 2011) (holding that § 273.5

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is a categorical crime of violence under the force clause of the illegal reentry guidelines,

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§ 2L1.2); United States v. Laurico-Yeno, 590 F.3d 818, 823 (9th Cir. 2010) (same).

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Johnson is inapposite to Serrano-Perez’s case – the Court didn’t rely on any version
of any “residual clause” in imposing his sentence. His motion is DENIED.

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IT IS SO ORDERED.
DATED: October 27, 2016

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HONORABLE LARRY ALAN BURNS
United States District Judge

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“PSR refers to the Presentence Report filed in Serrano-Perez’s case on May 26,

2015.
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15cr0286/16cv1716