Carmona v. USA

Filing 5

///ORDER dismissing 1 Motion to Vacate Sentence - 2255. The Court declines to issue a certificate of appealability. So Ordered by Judge Landya B. McCafferty.(de)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Carlos Rodriguez Carmona
v.

Civil No. 16-cv-282-LM
Opinion No. 2016 DNH 123

United States of America
O R D E R
Carlos Rodriguez Carmona, proceeding pro se, seeks habeas
corpus relief, pursuant to 28 U.S.C. § 2255, from his sentence
for distribution of a controlled substance, possession with
intent to distribute a controlled substance, and possession of a
firearm by a convicted felon.

See United States v. Carmona, 14-

cr-128-LM (D.N.H. Feb. 19, 2015).

Carmona alleges that his

sentence was improperly enhanced under a provision of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924.

He argues that

under Johnson v. United States, --- U.S. ---, 135 S. Ct. 2551
(2015), his sentence is invalid.
Standard of Review
A prisoner in custody under a sentence of a federal
district court may seek release “on the ground that the sentence
was imposed in violation of the Constitution or the laws of the
United States.”

§ 2255(a).

The court will cause notice of a

petition under § 2255 “to be served upon the United States

attorney, grant a prompt hearing thereon, determine the issues
and make findings of fact and conclusions of law” unless “the
files and records of the case conclusively show that the
prisoner is entitled to no relief.”

§ 2255(b).

Sworn

allegations in the petition are taken as true “unless those
allegations are merely conclusory, contradicted by the record,
or inherently incredible.”

Owens v. United States, 483 F.3d 48,

57 (1st Cir. 2007) (internal quotation marks omitted).
Background
In United States v. Carmona, 14-cr-128-LM (“Criminal
Case”), Carmona pleaded guilty to three counts of distribution
of a controlled substance in violation of 21 U.S.C. § 841(a)(1)
(Counts I-III), one count of possession with intent to
distribute a controlled substance in violation of 21 U.S.C. §
841(a)(1) (Count IV), and one count of possession of a firearm
by a convicted felon in violation of 18 U.S.C. § 922(g)(1)
(Count V).

He was sentenced to 180 months imprisonment on each

count, to be served concurrently, and to be followed by five
years of supervised release.
Carmona’s base offense levels for Counts I-IV were
calculated pursuant to U.S.S.G. § 2D1.1(c)(5).

The court then

increased Carmona’s base offense level for counts I-IV by two
levels pursuant to U.S.S.G. § 2D1.1(b)(1) because Carmona

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possessed a dangerous weapon.

Carmona’s sentence on Counts I-IV

was not subject to enhancement because of his designation as an
armed career criminal.
Carmona was, however, sentenced as an armed career criminal
pursuant to U.S.S.G. § 4B1.4 on Count V.

Pursuant to U.S.S.G. §

4B1.4, “[a] defendant who is subject to an enhanced sentence
under the provisions of 18 U.S.C. § 924(e) is an armed career
criminal.”

Carmona was subject to an enhanced sentence under §

924(e) because of his three prior convictions for serious drug
offenses.

The Presentence Investigation Report (“PSR”)

identified those three convictions as:
1.

A conviction in Middlesex County Superior Court for
“Possession of a Controlled Substance with Intent to
Distribute,”

2.

Criminal Case, doc. no. 21 at ¶ 71;

A conviction in Rockingham County Superior Court for
four counts of “Sale of a Controlled Drug,” Criminal
Case, doc. no. 21 at ¶ 65; and

3.

A conviction in Essex County Superior Court for
“Possession of a Controlled Substance with Intent to
Distribute,” Criminal Case, doc. no. 21 at ¶ 57.

As a result of his designation as an armed career criminal, the
court determined that his offense level was 37, but reduced his
total offense level to 34 for acceptance of responsibility.
Carmona was not sentenced under the ACCA, § 924(e).
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Discussion
The ACCA § 924(e)(1) imposes a minimum sentence of fifteen
years “[i]n the case of a person who violates section 922(g) of
this title and has three previous convictions . . . for a
violent felony or a serious drug offense, or both, committed on
occasions different from one another.”
The term violent felony means any crime punishable by
imprisonment for a term exceeding one year that -(i)
has an element the use, attempted use, or threatened
use of physical force against the person of another;
or (ii) is burglary, arson, or extortion, involves the
use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
to another.
18 U.S.C. § 924(e)(2)(b).

In Johnson, the Supreme Court held

that subsection ii, also known as “the ‘residual clause’ of the
[ACCA], 18 U.S.C. § 924(e), is unconstitutionally vague and thus
void.”

United States v. Bey, --- F.3d ---, 2016 WL 3206808, at

*5 (1st Cir. June 9, 2016).

Therefore, defendants sentenced

under the ACCA’s residual clause may be entitled to relief from
the sentence under § 2255, pursuant to Johnson.

See Welch v.

United States, --- U.S. ---, 136 S. Ct. 1257, 1265 (2016).1

It is unclear whether Johnson applies to the residual clause
in U.S.S.G. § 4B1.2(a)(2) and if it does, whether it does so
retroactively to cases on collateral review. Those questions
are currently before the United States Supreme Court. See
Beckles v. United States, No. 15-8544. The court assumes
without deciding that Johnson is applicable to the sentencing
guidelines and applies retroactively for the purposes of this
order.
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In his petition, Carmona claims that he is entitled to
relief because his prior convictions do not constitute crimes of
violence as defined by the ACCA.

He also contends that they

were not proven to a jury beyond a reasonable doubt and were
thus improperly considered at his sentencing hearing.

Carmona

contends that the court should vacate, set aside, and correct
his sentence in light of Johnson.

The record, however, does not

support either of Carmona’s theories.
Carmona’s argument for relief under Johnson fails because
his sentence was not enhanced pursuant to the violent crimes
provision of 18 U.S.C. § 924(e)’s residual clause or the
residual clause in U.S.S.G. § 4B1.2(a)(2).

While the record

reveals that he was deemed an armed career criminal under
U.S.S.G. § 4B1.4, he was so deemed because of his prior
convictions for “serious drug offenses.”

Therefore, Johnson is

inapplicable to Carmona’s sentence because his sentence was not
based on a crime of violence, but rather serious drug offenses.
Carmona’s second argument for relief, that his prior
convictions were not proven beyond a reasonable doubt, is
misplaced.

His prior convictions are sentencing factors and not

elements of a crime.
490 (2000).

See Apprendi v. New Jersey, 530 U.S. 466,

As such, they need not be proven to a jury beyond a

reasonable doubt.

Id. (“Other than the fact of a prior

conviction, any fact that increases the penalty for a crime
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beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.”

(emphasis added)).

Conclusion
For the foregoing reasons, the petition for a writ of
habeas corpus (document no. 1) is dismissed.
Because the petitioner has not made a substantial showing
of the denial of a constitutional right, the court declines to
issue a certificate of appealability.

See 28 U.S.C. §

2253(c)(2); Rule 11(a), Rules Governing Section 2255
Proceedings.
SO ORDERED.
__________________________
Landya McCafferty
United States District Judge
July 21, 2016
cc:

Carlos Rodriguez Carmona, pro se
Seth R. Aframe, Esq.

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