Gudino v. USA

Filing 1

OPINION AND ORDER denying Motion to Vacate (2255) as to Antonio Gudino (19). The Clerk is ORDERED to DISMISS the civil action WITH PREJUDICE. Additionally, the Court DECLINES to issue a certificate of appealability. ***Civil Case Terminated. Signed by Judge Rudy Lozano on 8/4/17. (Copy mailed to pro se party)(kjp)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
UNITED STATES OF AMERICA,

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Plaintiff,
v.
ANTONIO GUDINO,
Defendant.

No. 2:10-CR-109
(2:16-CV-205)

OPINION AND ORDER
This matter is before the Court on the Motion to Correct
Sentence Under 28 U.S.C. § 2255, filed by Antonio Gudino (“Gudino”)
on June 21, 2016 (DE #1302).

For the reasons set forth below, the

motion is DENIED.
Gudino

plead

guilty

to

conspiring

to

participate

racketeering activity, in violation of 18 U.S.C. § 1962(d).

in
This

court determined that he was a career offender under United States
Sentencing Guideline sections 4B1.1 and 4B1.2 because he had prior
convictions for crimes of violence; namely, criminal recklessness
and

residential

entry.

He

was

sentenced

to

175

months

of

incarceration.
Thereafter, the Supreme Court of the United States analyzed
whether the residual clause of the Armed Career Criminal Act
(“ACCA”) is void for vagueness.

Johnson v. United States, 135 S.

Ct. 2551 (2015).

As Justice Scalia noted:

Under the Armed Career Criminal Act of 1984, a
defendant convicted of being a felon in
possession of a firearm faces more severe
punishment if he has three or more previous
convictions for a “violent felony,” a term
defined to include any felony that “involves
conduct that presents a serious potential risk
of physical injury to another.”
18 U.S.C.
§924(e)(2)(B).
We must decide whether this
part of the definition of a violent felony
survives the Constitution’s prohibition of
vague criminal laws.
Id. at 2555.

Ultimately, the Supreme Court held that “imposing an

increased sentence under the residual clause of the Armed Career
Criminal Act violates the Constitution’s guarantee of due process.”
Id. at 2563. It therefore overruled its prior decision in Sykes v.
United States, 131 S. Ct. 2267 (2011), and held that the residual
clause

of

the

definition

unconstitutionally vague.
Johnson

decision

collateral review.

is

of

violent

felony

in

the

ACCA

Johnson, 135 S. Ct. at 2563.

retroactive

on

both

direct

appeal

was
The
and

Price v. United States, 795 F.3d 731, 732 (7th

Cir. 2015). In light of Johnson v. United States, ___ U.S. ____, 35
S. Ct. 2551 (June 26, 2015), the Seventh Circuit granted Gudino
leave to file the instant successive motion to vacate under § 2255.
Although this Court found Gudino was a career offender under
Guideline sections 4B1.1 and 4B1.2, Gudino was not sentenced as an
armed career criminal under the ACCA.

Accordingly, Gudino’s

Johnson argument can only prevail if the decision in Johnson is
applicable to the similar language of the Guidelines under which
2

Gudino was sentenced.
Because precisely that issue was raised by a case then pending
before the Supreme Court, the Government sought a stay of these
proceedings pending a determination by the Supreme Court of whether
Johnson applies on collateral review to nearly identical language
found in the Guidelines.

(DE #1321).

The stay was granted.

On

March 6, 2017, the Supreme Court decided Beckles v. United States,
137 S.Ct. 886 (2017).

The Court in Beckles determined that the

holding in Johnson did not extent to the Guideline provisions under
which Gudino was found to be a career offender.

As the Court

noted:
Unlike the ACCA, however, the advisory
Guidelines do not fix the permissible range of
sentences. To the contrary, they merely guide
the exercise of a court’s discretion in
choosing an appropriate sentence within the
statutory range. Accordingly, the Guidelines
are not subject to a vagueness challenge under
the Due Process Clause. The residual clause
in 4B1.2(a)(2) therefore is not void for
vagueness.
Id. at 892. Following Beckles, the stay was lifted and the parties
were granted an opportunity to file additional briefs.
is now ripe for adjudication.

The matter

In light of Beckles, the Court’s

ruling in Johnson is inapplicable to Gudino, and his Motion to
Correct Sentence Under 28 U.S.C. § 2255 (DE #1302) is DENIED.
Pursuant to Rule 11 of the Rules Governing Section 2255
Proceedings, a district court must “issue or deny a certificate of

3

appealability
applicant.”

when

it

enters

a

final

order

adverse

to

the

A certificate of appealability may issue only if the

applicant “has made a substantial showing of the denial of a
constitutional right.”

28 U.S.C. § 2253(c)(2).

To make such a

showing, a defendant must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the motion should
have been resolved in a different manner or that the issues
presented
further.”

were

adequate

to

deserve

encouragement

to

proceed

Slack v. McDaniel, 529 U.S. 473, 475 (U.S. 2000)

(internal quotation marks and citation omitted).

Gudino has not

stated any grounds for relief under section 2255.

The Court finds

no basis for a determination that reasonable jurists would find
this decision debatable or incorrect or that the issues deserve
encouragement to proceed further. Therefore, the Court DECLINES to
issue a certificate of appealability.
The Clerk is ORDERED to DISMISS this civil action WITH
PREJUDICE.

The Clerk is FURTHER ORDERED to distribute a copy of

this order to Petitioner (Inmate Reg. No. 11907-027), McCreary USP,
US Penitentiary, Inmate Mail/Parcels, P.C. Box 3000, Pine Knot, KY
42635, or to such other more current address that may be on file
for the Gudino.
DATED: August 4, 2017

/s/ RUDY LOZANO, Judge
United States District Court

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