Sotelo v. USA
OPINION AND ORDER: The court DENIES Mr. Sotelos motion to vacate. Signed by Judge Robert L Miller, Jr on 10/14/2016. (dk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
GEORGE ROBERT SOTELO,
UNITED STATES OF AMERICA,
Cause No. 3:16-cv-375 RLM
(Arising from 3:95-cr-1 RLM)
OPINION AND ORDER
George Sotelo was convicted of six counts of mailing threatening
communications, 18 U.S.C. § 876(b), (c). This matter is before the court on Mr.
Sotelo’s motion to vacate his sentence under 28 U.S.C. § 2255. For the reasons
that follow, the court denies Mr. Sotelo’s motion.
A jury found Mr. Sotelo guilty of six counts of mailing a threatening
communication. 18 U.S.C. § 876(b), (c). On three separate dates he mailed to
Carolyn Barlow a communication containing a threat to injure Ms. Barlow and
others, in violation of § 876(c), and did so with intent to extort money from her,
in violation of § 876(b). He was sentenced to 240 months imprisonment for the
three extortion-based violations and 22 months for the three general threat
violations, to be served consecutively. Mr. Sotelo’s sentence was enhanced for
committing a “crime of violence” while having at least two prior felony convictions
for either a “crime of violence” or a “controlled substance offense,” U.S.S.G. §
4B1.1(a), and the final sentence fell within the recommended range of 210 to 262
months. The prior felony convictions aren’t at issue. The issue is whether, after
the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2251
(2015), a violation of § 876(b) or (c) is a “crime of violence” as defined under §
4B1.2. If not, Mr. Sotelo might be entitled to resentencing.
On June 26, 2015, the Supreme Court decided Johnson v. United States,
135 S. Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act,
which imposes a fifteen-year mandatory minimum sentence for a defendant who
committed three prior “violent felonies.” The statute defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one
year . . . that –
(i) has as an element the use, attempted use, or threatened use of
physical force against the person of another [the “elements clause”];
(ii) is burglary, arson, or extortion, involves use of explosives [the
“enumerated offenses clause”], or otherwise involves conduct that
presents a serious potential risk of physical injury to another [the
unconstitutionally vague under the Due Process Clause, U.S. CONST. amend. V.
Johnson announced a substantive rule retroactively applicable to cases on
collateral review. Welch v. United States, 136 S. Ct. 1257, 1265 (2016).
Mr. Sotelo wasn’t sentenced according to the definition of “violent felony”
in the ACCA, but under identical language in § 4B1.2 of the Guidelines defining
the term “crime of violence.” Mr. Sotelo argues that a § 876 violation isn’t a “crime
of violence” as defined under § 4B1.2 for three reasons: first, § 876 isn’t a “crime
of violence” under the elements clause, § 4B1.2(a)(1); second, § 876 isn’t a “crime
of violence” under the enumerated offenses clause, § 4B1.2(a)(2); and third, §
876 isn’t a “crime of violence” under the residual clause, § 4B1.2(a)(2), because
the residual clause is unconstitutional under Johnson.1 As a result, he shouldn’t
have been subject to § 4B1.1(a)’s career offender enhancement. Mr. Sotelo filed
a petition under 28 U.S.C. § 2255 asking that his sentence be vacated and he be
resentenced without the career offender enhancement.
II. STANDARD OF REVIEW
A person convicted of a federal crime can challenge his sentence on
grounds that the sentence violates the Constitution or laws of the United States,
the court had no jurisdiction to impose such sentence, the sentence exceeded
the maximum authorized by law, or the sentence is otherwise subject to
collateral attack. 28 U.S.C. § 2255(a). Issues not argued and decided on direct
appeal generally can’t be raised in a § 2255 petition unless the petitioner can
show good cause and actual prejudice for the procedural default. Galbraith v.
United States, 313 F.3d 1001, 1006 (7th Cir. 2002). Mr. Sotelo filed his motion
to correct his sentence within one year of when “the right asserted was initially
recognized by the Supreme Court” in United States v. Johnson, 135 S. Ct. 2551
While Mr. Sotelo awaited this order, the court of appeals held that the residual clause of §
4B1.2(a)(2) violates the Due Process Clause because it’s “so vague that it fails to give ordinary
people fair notice of the conduct it punishes, or so standardless that it invites arbitrary
enforcement.” United States v. Hurlburt, No. 15-1686, 2016 WL 4506717, at *3 (7th Cir. Aug.
29, 2016) (quoting Johnson, 135 S. Ct. at 2556).
(2015) and “made retroactively applicable to cases on collateral review” in Welch
v. United States, 136 S. Ct. 1257 (2016). 28 U.S.C. § 2255(f)(3).
An evidentiary hearing isn’t required if “the motion and files and records
of the case conclusively show that the petitioner is entitled to no relief.” 28 U.S.C.
§ 2255. After reviewing Mr. Sotelo’s petition and the record of this case, the court
concludes that the factual and legal issues raised can be resolved on the record,
so no hearing is necessary. See Menzer v. United States, 200 F.3d 1000, 1006
(7th Cir. 2000) (hearing not required where the record conclusively demonstrates
that a petitioner is entitled to no relief on § 2255 motion).
Mailing threatening communications under § 876(b) or (c) is a “crime of
violence” under the elements clause of Guidelines § 4B1.2(a). In interpreting the
Guidelines, the court of appeals held that a § 876 violation is a “crime of
violence.” United States v. Sullivan, 75 F.3d 297 (7th Cir. 1996). Sullivan is still
good law and binds this court’s interpretation of § 4B1.2(a).
Mr. Sotelo objects to applying Sullivan to his case for two reasons: (1)
Sullivan is based on the incorrect assumption that § 876 is divisible for purposes
of analyzing its elements and (2) Sullivan doesn’t reflect changes in the
interpretation of “physical force” after cases like United States v. Johnson, 559
U.S. 133 (2010). The court disagrees with both reasons.
First, analysis of whether a crime “has as an element the use, attempted
use, or threatened use of physical force,” § 4B1.2(a)(1), is based on “the statutory
elements of the offense, not the actual facts underlying the conviction.” United
States v. Duncan, No. 15-3485, 2016 WL 4254936, at *2 (7th Cir. Aug. 12, 2016)
(citing Descamps v. United States, 133 S. Ct. 2276, 2283 (2013)). The exclusive
focus on the elements of the crime rather than the specifics of how the defendant
committed the crime is known as the “categorical approach.”
Conviction under § 876(b) and (c) requires proof that the communication
contain “any threat to kidnap any person or any threat to injure the person of
the addressee or of another.” 18 U.S.C. § 876(b), (c). Mr. Sotelo argues that
Sullivan only dealt with the “threat to injure” half of this clause. Under the
categorical approach, he says, the threat to kidnap and the threat to injure
constitute a single indivisible element. Because kidnapping can occur without
use of force, he says, § 876 isn’t a “crime of violence” under the elements clause.
After Mr. Sotelo filed his motion to dismiss, the Supreme Court decided
Mathis v. United States, 136 S. Ct. 2243 (2016), which elaborates on the method
for parsing out the “elements” of a particular offense under Descamps v. United
States, 133 S. Ct. 2276 (2013).
The first step is to determine whether “containing any threat to kidnap any
person or any threat to injure the person” lists out alternative elements to § 876
violations or alternative means of commission. See Mathis, 136 S. Ct. at 2256.
“If statutory alternatives carry different punishments, then under Apprendi[ v.
New Jersey, 530 U.S. 466 (2000)], they must be elements.” Id. The statutory
punishments under § 876 are identical, regardless of whether the crime is
carried out with threat of kidnapping or of injury. This suggests that the
kidnapping-injury distinction is one of means, not elements.
“Conversely, if a statutory list is drafted to offer ‘illustrative examples,’ then
it includes only a crime’s means of commission.” Id. The two routes for violation
of § 876 aren’t simply illustrative examples. Mathis provides as example a statute
requiring use of a “deadly weapon” that then lists examples of objects that would
qualify as “deadly weapons.” Id. at 2249. Whether the crime is carried out with
a rope or a candlestick only impacts the means of commission. It isn’t necessary
to prove which one was used in order to prove guilt of the overall crime. Listing
them in the statute only helps guide interpretation of “deadly weapon.”
The options of “threat to kidnap” and “threat to injure” under § 876 are
more than illustrative examples of how to commit the crime of mailing
threatening communications. Nothing indicates what a “threat to kidnap” or a
“threat to injure” would be an example. This is unlike the Mathis model, where
the listed objects are all examples of “deadly weapons.” This approach suggests
that the kidnapping-injury distinction is one of elements, not means.
The next method for separating elements and means is to look at the
record “for the sole and limited purpose of determining whether the listed items
are elements of the offense.” Id. at 2256-57 (internal quotations omitted). “[A]n
indictment and jury instructions could indicate, by referencing one alternative
term to the exclusion of all others, that the statute contains a list of elements,
each one of which goes toward a separate crime.” Id. at 2257. The indictment
and jury instructions support the conclusion that “threat to injure” and “threat
to kidnap” are distinct elements. Mr. Sotelo was explicitly charged with making
written communications, each of which “contained a threat to injure the persons
of Carolyn Barlow, Yvonne Webster, Emily Nagayma, and Chelsea Nagayma.” No
count mentions “threat to kidnap” as an alternative means of commission. The
jury instructions ask the jury to find the same. This approach also suggests that
the kidnapping-injury distinction is one of elements, not means.
Even though the statute doesn’t prescribe different punishments based on
whether the § 876 violation has a “threat to injure” or a “threat to kidnap,” the
Mathis methods overwhelmingly point to the statute being divisible based on
these grounds. This conclusion is consistent with the rest of the Court’s
reasoning. “‘Elements’ are the constituent parts of a crime’s legal definition – the
things the prosecution must prove to sustain a conviction. At a trial, they are
what the jury must find beyond a reasonable doubt to convict the defendant;
and at a plea hearing, they are what the defendant necessarily admits when he
pleads guilty.” Id. at 2248 (internal quotations omitted). It would have been
insufficient for the jury to find Mr. Sotelo guilty by means of a “threat to kidnap.”
The two alternatives for § 876 violations are alternatives in the overall
elements of the crime, not in the means of commission, and so the statute is
divisible for purposes of determining whether it falls under the elements clause.
The next issue is whether a § 876 violation based on a “threat to injure” “has as
an element the use, attempted use, or threatened use of physical force against
the person of another.” U.S.S.G. § 4B1.2(a)(1). It does.
The court of appeals already addressed whether a § 876 violation is a
“crime of violence” under § 4B1.1. United States v. Sullivan, 75 F.3d 297 (7th
Cir. 1996). The rationale in Sullivan was based on the court’s holding that threat
to inflict bodily harm upon the President, 18 U.S.C. § 871, is a crime of violence.
United States v. Poff, 926 F.2d 588 (7th Cir. 1991). The court held that “[t]hreats
are themselves a form of violence that may be costly and dangerous to society in
a variety of ways, even when their authors have no intention whatever of carrying
them out.” Id. at 590 (internal quotes omitted). The “threat to inflict bodily harm”
in § 871 allowed “[n]o semantical contrivance [to] avoid the simple conclusion
that the conduct involved in this offense is . . . the ‘threatened use of physical
force against the person . . . of another.” United States v. McCaleb, 908 F.2d 176,
178 (7th Cir. 1990), cited in Poff, 926 F.2d at 590. As the court recognized in
Sullivan, there is no reason to treat the “threat to injure” language in § 876 any
differently than in § 871. As Mr. Sotelo notes, it’s possible to intentionally injure
without the use of force, such as by a doctor who deliberately withholds vital
medicine. That isn’t how this phrase is understood in § 876 and the court of
appeals makes that plain.
Mr. Sotelo argues that cases like United States v. Johnson, 559 U.S. 133
(2010) narrowed the interpretation of “physical force” to mean “violent force –
that is, force capable of causing physical pain or injury to another person,”
Johnson, 559 U.S. at 138, so that one could threaten injury under § 876 without
falling under the elements clause. The narrowed meaning of “physical force” isn’t
a high bar. “Physical force” “might consist of nothing more than a slap in the
face.” United States v. Duncan, No. 15-3485, 2016 WL 4254936, at *3 (7th Cir.
Aug. 12, 2016) (interpreting the elements clause of the ACCA).
Duncan instructs that it’s sufficient to put the victim in fear of physical
force. The Indiana crime of robbery “by fear,” requires fear of bodily injury. Id. at
*5. Fear of bodily injury is sufficient for the elements clause so long as the law
requires “proof that the robber put the victim in fear that the robber was
prepared to use ‘physical force,’” “force capable of causing physical pain or injury
to another person.” Id. The same goes for a “threat to injure” under § 876. The
Duncan threshold is met as long as the offender threatens “force capable of
causing physical pain or injury to another person.” Id. (emphasis added). As
“threat to injure” is understood in Sullivan, the minimal level of “violent force”
required under Duncan is built into this element. Mr. Sotelo hasn’t cited any
cases indicating that the court of appeals considers “threat to injure” under §
876 to cover the supposedly non-violent, hypothetical threats he suggested.
“Threat to injure” is an element of § 876 that requires threat of the use of
communications under § 876(b) or (c) with a “threat to injure” is thus a “crime
of violence” under the elements clause of § 924(c) and Sullivan is good law
regarding these kinds of § 876 violations. The court’s application of the § 4B1.1
career offender guideline at Mr. Sotelo’s sentencing was lawful.
Based on the foregoing, the court DENIES Mr. Sotelo’s motion to vacate
[Doc. No. 75].
ENTERED: October 14, 2016
/s/ Robert L. Miller, Jr.
United States District Court
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