Osuna-Zavala v. USA

Filing 6

MEMORANDUM DECISION AND ORDER - NOW THEREFORE IT IS HEREBY ORDERED as follows: 1. The Governments Motion to Dismiss (CV Dkt. 3 ) is GRANTED. 2. Petitioners § 2255 Motion to Vacate, Correct, or Set Aside his Sentence (CR Dkt. 59) (CV Dkt. 1) is DENIED. 3. Certificate of Appealability is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjs)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

MIGUEL ANGEL OSUNA-ZAVALA,

Case No. 1:16-CV-00338-EJL
1:15-CR-00075-EJL

Petitioner,
MEMORNADUM DECISION
AND ORDER

v.
UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
Before the Court in the above-entitled matter is Petitioner’s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255. (CV Dkt. 1.)1 The Government has
filed a Motion to Dismiss to which the Petitioner has responded. (CV Dkt. 3, 5.) Having
fully reviewed the record, the Court finds that the facts and legal arguments are
adequately presented in the briefs and record. Accordingly, in the interest of avoiding
further delay, and because the Court conclusively finds that the decisional process would
not be significantly aided by oral argument, the Motion shall be decided on the record
before this Court without oral argument.

1

In this Order, the Court will use (CR Dkt. ) when citing to the criminal case (1:15-cr0075-EJL) and (CV Dkt. ) when citing to the civil case (1:16-cv-00338-EJL).

MEMORANDUM DECISION AND ORDER - 1

BACKGROUND
On September 9, 2015, Petitioner, Miguel Angel Osuna-Zavala, plead guilty to
Possession of a Firearm in Furtherance of a Drug Trafficking Offense in violation of 18
U.S.C. § 924(c)(1)(A) and Conspiracy to Possess a Controlled Substance with Intent to
Distribute in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B); and 846. (CR Dkt. 24.) This
Court sentenced Mr. Osuna-Zavala on December 7, 2015 to 24 months on the drug
charge and 60 months on the firearms charge to run consecutively for a total term of 84
months imprisonment to be followed by a term of supervised release. (CR Dkt. 51, 52.)
No appeal was filed.2
On July 22, 2016, Mr. Osuna-Zavala filed the instant § 2255 Motion seeking to
correct his sentence in light of the Supreme Court’s decision in Johnson v. United States,
135 S.Ct. 2251 (2015). (CR Dkt. 59) (CV Dkt. 1.) The Government has filed a Motion to
Dismiss arguing Johnson does not apply to Mr. Osuna-Zavala’s case. (CV Dkt. 3.) Mr.
Osuna-Zavala has filed an Answer in Support of his § 2255 Motion asserting his offense
does not qualify as a “violent felony” because he did not “use” the firearm. (CV Dkt. 5.)
DISCUSSION
Under 28 U.S.C. § 2255, a federal prisoner in custody under sentence may move
the court that imposed the sentence to vacate, set aside, or correct the sentence on the
ground that:

2

Mr. Osuna-Zavala filed a Motion for Reduction of Sentence which was denied. (CR
Dkt. 56, 62.)

MEMORANDUM DECISION AND ORDER - 2

[T]he sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such
sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack....
28 U.S.C. § 2255.
The Supreme Court in Johnson held that the residual clause of the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), which imposes a minimum 15 year
sentence for individuals who had three or more prior convictions for a “violent felony,”
to be unconstitutionally vague and violated due process. See Johnson, 135 S.Ct. at 255760. The “residual clause” defined “violent felony” to include a felony that “involves
conduct that presents a serious potential physical risk of physical injury to another.” See
id.
In this case, Mr. Osuna-Zavala was subject to an increased penalty pursuant to 18
U.S.C. § 924(c)(1)(A) and (2) because he possessed a firearm in furtherance of a drug
trafficking offense. The “crime of violence” subsection, 18 U.S.C. § 924(c)(3), and its
residual clause did not apply. Therefore, the Johnson decision does not apply here and
Mr. Osuna-Zavala is not entitled to relief on his § 2255 Motion. See United States v.
Gibson, Cr. No. 3:09-931-CMC, 2016 WL 4196657, at *2 (D.S.C. Aug. 9, 2016);
Eldridge v. United States, No. 16-cv-3173, 2016 WL 4062858, at *3 (C.D. Ill. July 29,
2016). For this same reason, that he was not sentenced under the “crime of violence”
subsection of § 924(c), Petitioner’s argument that his offense does not qualify as a
“violent felony” because he did not “use” the firearm also fails. (CV Dkt. 5.) The
Government’s Motion to Dismiss is granted. (CV Dkt. 3.)
MEMORANDUM DECISION AND ORDER - 3

The Court also denies issuance of a certificate of appealability (COA). “The
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11(a), Rules Governing § 2255 Proceedings. A COA
should issue as to those claims on which the petitioner makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is satisfied if
“jurists of reason could disagree with the district court's resolution of [the] constitutional
claims” or “conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Here, Mr. Osuna-Zavala has not shown the
deprivation of any constitutional right as no reasonable jurist would disagree that Johnson
does not apply to this case.
ORDER
NOW THEREFORE IT IS HEREBY ORDERED as follows:
1.

The Government’s Motion to Dismiss (CV Dkt. 3) is GRANTED.

2.

Petitioner’s § 2255 Motion to Vacate, Correct, or Set Aside his Sentence
(CR Dkt. 59) (CV Dkt. 1) is DENIED.

3.

Certificate of Appealability is DENIED.
October 21, 2016

MEMORANDUM DECISION AND ORDER - 4