Reyes v. USA

Filing 1

OPINION AND ORDER: Defendant Richard Reyes Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §2255 is DENIED, and a motion for certificate of appealability is also DENIED. The Clerk shall enter judgment against Reyes and in favor of the United States in the civil case opened on the §2255, Cause No. 2:20CV109-PPS. Signed by Judge Philip P Simon on 7/21/2020. (Copy mailed to pro se party 7099 3400 0003 4511 7401)(shk)

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
RICHARD REYES,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Cause No. 2:20CV109-PPS
Arising from 2:11CR77-PPS

OPINION AND ORDER
Richard Reyes was tried before a jury on four charges. Count 1 charged a
conspiracy to participate in racketeering activity. Count 2 charged a drug conspiracy
involving cocaine and marijuana. Count 7 charged murder in aid of racketeering.
Count 8 charged murder resulting from use and carrying of a firearm during and in
relation to a crime of violence. On January 24, 2014, the jury found Reyes guilty of all
four counts. [DE 832.]
Reyes was facing a life sentence on the racketeering murder in Count 7 under 18
U.S.C. §1959(a)(1). After the trial, the parties entered into a sentencing agreement that
was filed with the court. [DE 1883.] The agreement explained the parties’ objectives in
entering into the agreement – that Reyes’ purpose was to “mitigate the possible
sentence” that might be imposed, and that the government’s purpose was “to obtain
finality of the conviction and sentence.” [Id. at 1-2.] In an effort to fulfill the purposes of
each, the parties agreed to jointly recommend a sentence of 276 months’ imprisonment,
and Reyes waived substantial rights to appeal his conviction or sentence, including

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“any post-conviction proceeding, including but not limited to, a proceeding under Title
28, United States Code, Section 2255.” [Id. at 2,3.] On January 27, 2017, I sentenced
Reyes to the agreed prison term of 276 months on each of counts 1, 2, 7 and 8, all terms
to be served concurrently. [DE 1890 at 3.]
Now before me is Reyes’ motion to vacate, correct or set aside sentence pursuant
to 28 U.S.C. §2255 [DE 2052.] The motion is filed pro se, and is not a model of clarity. I
construe Reyes’ argument as that his convictions on Counts 1, 7 and 8 are voided by the
Supreme Court’s decision in United States v. Davis, 139 S.Ct. 2319 (2019). In Davis, the
court held that the so-called “residual clause” of the definition of “violent felony” is
unconstitutionally vague in 18 U.S.C. §924(c)(3)(B), the federal statute prohibiting using
or carrying a firearm in connection with a crime of violence, which was the basis for
Count 8 against Reyes.
Waiver of Collateral Attack
The government attempts to defeat Reyes’ motion on several procedural grounds
short of dealing with the substance of Reyes’ argument. First, the government invokes
Reyes’ waiver of the right to bring a motion under §2255. Reyes’ sentencing agreement
retains only one ground for a later attack on his convictions, namely a claim of
ineffective assistance of counsel relating directly to the waiver or its negotiation. [DE
1883 at 3.] The argument Reyes makes now is clearly not of that type and so is within
the scope of the waiver. A knowing and intelligent waiver of collateral review is
routinely upheld and enforced. Dowell v. United States, 694 F.3d 898, 902 (7th Cir. 2012);
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Keller v. United States, 657 F.3d 675, 681 (7th Cir. 2011). The Seventh Circuit has
“recognized only a ‘few narrow and rare’ grounds for not enforcing a voluntary and
effectively-counseled waiver of direct appeal or collateral review.” Oliver v. United
States, 951 F.3d 841, 844 (7th Cir. 2020). These include the sentencing court’s reliance on
an unconstitutional factor such as race or gender, a sentence that exceeded the statutory
maximum, or a proceeding that lacked a “minimum of civilized procedure.” Id.,
quoting United States v. Campbell, 813 F.3d 1016, 1018 (7th Cir. 2016). None of these
circumstances is present here.
In Oliver, two defendants brought §2255 motions challenging their §924(c)
convictions on grounds similar to Reyes’, namely that under recent Supreme Court
decisions their predicate “crimes of violence” no longer qualified. The Seventh Circuit
held that the “broad and explicit terms of Oliver and Ross’s collateral-attack waivers
encompass their current challenges, whether they are labeled ‘jurisdictional’ or not.”
Oliver, 951 F.3d at 845. Even claims of facial unconstitutionality based on postsentencing developments in the law are subject to waiver by express agreement,
because “one major purpose of an express waiver is to account in advance for
unpredicted future developments in the law.” Id. And the subsequently invalidated
residual clause does not merit an exception to waiver enforcement as a “constitutionally
impermissible factor” akin to race or gender because that exception is ordinarily
“limited to identity-based factors.” Id. at 847-48. Reyes’ waiver of collateral attack
forecloses his §2255 motion.
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Concurrent Sentence Doctrine
Next the government points out that Reyes challenges only his convictions on
Counts 1, 7 and 8, and not his conviction on Count 2, which alone would carry the same
sentence. As previously explained, Reyes received four concurrent sentences, each to a
term of 178 months. Even if Reyes were to succeed in voiding his conviction on the
three other counts, his conviction and sentence on the drug conspiracy alleged in Count
2 would be undisturbed. The government cites Ryan v. United States, 688 F.3d 845, 849
(7th Cir. 2012): “Even on direct appeal, courts are free to pretermit decision about
convictions producing concurrent sentences, when the extra convictions do not have
cumulative effects.”
Whether or not I have the discretion to forgo ruling on Reyes’ motion in view of
the concurrent sentences, I am not inclined to reject his §2255 on that basis. To leave
Reyes convicted of such serious crimes simply because they do not add to his
punishment strikes me as an inherently unsatisfactory way of handling his legal
challenge. In any event, as this opinion demonstrates, there are several other bases for
denying Reyes relief under §2255.
Procedural Default
The government next asserts that Reyes cannot seek relief under §2255 because
he procedurally defaulted on his claim by not raising it on direct appeal. By the time of
Reyes’ sentencing, the Seventh Circuit had held that the residual clause of §924(c) was
unconstitutionally vague. See United States v. Cardena, 842 F.3d 959, 995-96 (7th Cir.
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2016). “Section 2255 cannot be employed as a substitute for a direct appeal. Sandoval v.
United States, 574 F.3d 847, 850 (7th Cir. 2009). “Any claim that could have been raised
originally in the trial court and then on direct appeal that is raised for the first time on
collateral review is procedurally defaulted.” Delatorre v. United States, 847 F.3d 837, 843
(7th Cir. 2017). Reyes makes no effort to demonstrate cause and prejudice to overcome a
procedural bar, or that a failure to consider the defaulted claim will result in a
fundamental miscarriage of justice. Cross v. United States, 892 F.3d 288, 294-95 (7th Cir.
2018). Procedural default provides a second basis for denial of Reyes’ motion under
§2255.
Merits of Reyes’ Claim
Finally, although Reyes’ waiver of collateral challenges is alone sufficient to
support the denial of his current motion, I will also briefly explain why I conclude his
argument lacks merit. Reyes repeatedly refers to Counts 1, 7 and 8, but only the §924
charge in Count 8 depends upon proof of a “crime of violence” to which Davis applies.
The indictment’s presentation of Count 8 specifically identified the pertinent crime of
violence as the murder of Rene Alonzo in aid of racketeering activity as charged in
Count 7, and further alleged that Reyes “did cause the death of a person through the
use of a firearm, which killing is murder defined in 18 U.S.C. §1111, in that the

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defendant, with malice aforethought, unlawfully killed a human being, that is Rene
Alonzo, willfully, deliberately, and maliciously.” [DE 652 at 26.]1
“After Davis, a §924(c) conviction based on a crime of violence is valid only
under the statute’s ‘elements clause,’ which treats as crimes of violence only crimes that
have as an element the actual, attempted, or threatened use of force.” Oliver, 951 F.3d at
844. A contention that the VICAR murder is not a crime of violence under the elements
clause is a non-starter. The government points out that the Seventh Circuit held as
much earlier this year, albeit in a non-precedential order, when it rejected Reyes’ codefendant Juan Briseno’s application for leave to pursue a successive §2255 motion to
bring a Davis argument against his §924(c) conviction:
Not surprisingly, we have recognized that attempted-murder statutes
qualify as crimes of violence under similarly worded elements-based
definitions, because all attempted murders necessarily require an attempt
to unleash physical force upon a human body....Nothing about the
attempted-murder-in-aid-of-racketeering statute, 18 U.S.C. §1959(a)(5)
could take it outside that general rule. Thus, there are no plausible
grounds for thinking that Davis can affect Briseno’s §924(c) conviction.
[DE 2071 at 2; Juan Briseno v. United States, No. 20-1652, at 2 (7th Cir. May 19, 2020).]
The same conclusion applies to Reyes’ murder in aid of racketeering charge under
§1959(a)(1), and would defeat his argument if reached on the merits.
As the jury was instructed, conviction of Reyes on Count 8 required their finding
beyond a reasonable doubt that he had “committed the crime of murder in aid of

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Reyes is mistaken when he repeatedly refers to “conspiracy to murder” as the predicate
crime of violence in this case.
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racketeering as charged in Count Seven” and that “the killing constituted a murder
within the meaning of federal law.” [DE 837 at 46.] The applicable definition of murder
required that Reyes had caused Alonzo’s death with deliberate, premeditated intent.
[Id. at 47.] As the Seventh Circuit has noted, murder is “the paradigm of an offense that
comes within the elements clause of §924(e).” Hill v. United States, 877 F.3d 717, 720 (7th
Cir. 2017), citing the Supreme Court’s opinion in Johnson v. United States, 559 U.S. 133,
140-41 (2010). If I needed to address Reyes’ ground for relief on the merits, I would find
that he has shown no basis for invalidating any of his convictions or requiring
resentencing.
Reyes’ motion under §2255 will be denied. Because I am denying the motion,
Rule 11 of the Rules Governing §2255 Proceedings requires me to issue or deny a
certificate of appealability. Because Reyes has not made a substantial showing of the
denial of a constitutional right, and reasonable jurists could not debate either the
procedural or substantive reasoning for rejecting Reyes’ motion, I will deny a certificate
of appealability. 28 U.S.C. §2253(c)(2); Welch v. United States, 136 S.Ct. 1257, 1263 (2016).
If Reyes wishes to appeal this Opinion and Order, he must seek a certificate of
appealability from the Court of Appeals under Federal Rule of Appellate Procedure 22.
ACCORDINGLY:
Defendant Richard Reyes Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. §2255 is DENIED, and a motion for certificate of appealability is also DENIED.

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The Clerk shall enter judgment against Reyes and in favor of the United States in
the civil case opened on the §2255, Cause No. 2:20CV109-PPS.
SO ORDERED.
ENTERED: July 21, 2020.
/s/ Philip P. Simon
PHILIP P. SIMON, JUDGE
UNITED STATES DISTRICT COURT

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