Apodaca v. United States of America

Filing 23

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 1 Petitioner's Motion to Correct Sentence Under 28 U.S.C. Section 2255 and 18 U.S.C. Section 3582(c)(2) be DENIED as outlined in the P roposed Findings and Recommended Disposition. Objections to PF&RD due by 7/20/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (jrt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DAVID APODACA,
Plaintiff-Petitioner,
No. CV 16-572 WJ/CG
No. CR 06-1828 WJ

v.
UNITED STATES OF AMERICA,
Defendant-Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Petitioner David Apodaca’s Motion to
Correct Sentence Under 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2) (the “Motion”),
(CV Doc. 1), filed June 14, 2016; Respondent United States of America’s Response to
Defendant’s Motion to Correct Sentence Under 28 U.S.C. § 2255 and 18 U.S.C. §
3582(c)(2) (the “Response”), filed November 17, 2016; Petitioner’s Reply to the
Government’s Response to His Motion to Correct the Sentence Pursuant to 28 U.S.C. §
2255 (the “Reply”), filed December 28, 2016; Petitioner’s Brief in Support of His Motion
to Correct Sentence Pursuant to 28 U.S.C. § 2255 after Beckles v. United States (the
“Supplemental Brief”), (CV Doc. 18), filed May 5, 2017; Respondent’s Response to
Defendant’s Motion to Correct Sentence under 28 U.S.C. § 2255 and 18 U.S.C. §
3582(c)(2) (the “Supplemental Response”), (CV Doc. 21), filed June 5, 2017; and
Petitioner’s Reply to the Government’s Response to His Brief in Support of the Motion
to Correct the Sentence Pursuant to 28 U.S.C. § 2255 after Beckles v. United States
(the “Supplemental Reply”), (CV Doc. 22), filed June 23, 2017.1 United States District
Judge William P. Johnson referred this case to Magistrate Judge Carmen E. Garza to
1

Documents referenced as “CV Doc.__” are from case number CV 16-572 WJ/CG. Documents
referenced as “CR Doc.__” are from case number CR 06-1828 WJ.

perform legal analysis and recommend an ultimate disposition. (CV Doc. 4). Having
considered the parties’ filings and the relevant law, the Court RECOMMENDS that
Petitioner’s Motion be DENIED and this case be DISMISSED WITH PREJUDICE.
I.

Background
On September 7, 2007, Petitioner pled guilty to conspiracy to manufacture,

distribute, and possess with intent to distribute controlled substances in violation of 21
U.S.C. § 846 and to possession with intent to distribute more than 500 grams of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). (CR Doc. 253 at
2). Petitioner and Respondent agreed that a 240 month sentence was appropriate and
should be the sentence imposed. Id. at 3. The parties based this determination on their
calculation of Petitioner’s advisory United States Sentencing Guideline (“U.S.S.G.” or
“Guidelines”) range. Id. at 4-5. Notably, the plea agreement does not mention whether
or not Petitioner was considered a “career offender” under the Guidelines. However, at
Petitioner’s sentencing hearing, the sentencing judge noted he agreed with Petitioner’s
presentence report that Petitioner qualified as a career offender. (CR Doc. 416 at 10).
On June 14, 2016, Petitioner filed the instant Motion, arguing his sentence
violates his constitutional right to due process. (CV Doc. 1 at 1). Petitioner argued that
following the Supreme Court of the United States’ decision in Johnson v. United States,
135 S. Ct. 2551 (2015), Petitioner did not qualify as a career offender. Id. In Johnson,
the Supreme Court held that the residual clause of the Armed Career Criminal Act
(“ACCA”) is unconstitutionally vague and may not be used to increase a defendant’s
sentence. Johnson, 135 S. Ct. at 2555. Petitioner claimed Johnson applied to the
identical residual clause in Guidelines § 4B1.2 and that the residual clause in § 4B1.2

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was used to increase his sentence. (CV Doc. 1 at 8-16). Because the Supreme Court
was likely to address whether Johnson applies to the Guidelines in Beckles v. United
States, 137 S. Ct. 886 (2017), the Court stayed this case pending Beckles’ resolution.
(CV Doc. 10).
On March 6, 2017, the Supreme Court held that Johnson does not apply to the
advisory Guidelines § 4B1.2. Beckles v. U.S., 137 S. Ct. 886, 890 (2017). Specifically,
the Supreme Court determined that because “they merely guide the exercise of a
court’s discretion in choosing an appropriate sentence,” the advisory Guidelines are not
subject to vagueness challenges. Id. at 892. Given this holding, and because
Petitioner’s arguments were based solely on Johnson’s application to the advisory
Guidelines, the Court ordered the parties to confer and inform the Court whether any
issues in Petitioner’s Motion survived Beckles. (CV Doc. 11). Petitioner requested the
Court enter a briefing schedule, (CV Doc. 12), which the Court did, (CV Doc. 11), and
supplemental briefing followed.
In his Supplemental Brief, Petitioner argues that “Beckles did not exempt from
vagueness challenges cases in which the sentencing court was obligated to apply the
career offender guidelines.” (CV Doc. 18 at 1). Basically, Petitioner argues that at the
time he was sentenced, district courts were “obligated” to apply the career offender
enhancement, therefore the Guidelines were effectively mandatory and Beckles does
not apply. (CV Doc. 8 at 2-4). Petitioner claims “district courts were to scrupulously
apply the career offender guidelines even if other parts of the guidelines were merely
advisory. In effect, then, in this circuit and others, the career offender guidelines fixed
the permissible range of sentences.” (CV Doc. 22 at 3; see CV Doc. 22 at 6-8).

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In response, Respondent points to Beckles’ clear holding: “the advisory
Guidelines are not subject to vagueness challenges.” Beckles, 137 S. Ct. at 892.
Respondent describes Petitioner’s Motion and Supplemental Brief as reaching
characterizations of Beckles and argues a number of other reasons why Petitioner
should not be resentenced. (CV Doc. 21 at 1-5; 9-14). In reply, Petitioner insists that
“when he was sentenced the career offender guidelines were mandatory” and “were not
treated as advisory in this circuit.” (CV Doc. 22 at 6).
II.

Analysis
a. Legal Standard
28 U.S.C. § 2255 provides that federal prisoners may challenge their sentences if

they claim: (1) the sentence was imposed in violation of the United States Constitution
or federal law; (2) the sentencing court had no jurisdiction to impose the sentence; (3)
the sentence exceeded the maximum authorized sentence; or (4) the sentence is
otherwise subject to collateral review. § 2255(a). If the court finds that a sentence
infringed the prisoner’s constitutional rights and is subject to collateral review, the court
must vacate the sentence and discharge, resentence, or correct the sentence as the
court believes appropriate. § 2255(b).
b. Whether Beckles forecloses Petitioner’s claims
The threshold question is whether Petitioner’s Motion survives Beckles. As
discussed, the parties strongly disagree. Petitioner argues that the “key difference”
between mandatory and advisory guidelines is the sentencing court’s ability to depart
from the Guidelines based solely on policy disagreement. (CV Doc. 18 at 7; CV Doc. 22
at 6-7). Petitioner claims that courts in the Tenth Circuit were obligated to adhere to the

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career offender enhancement and could not depart based on policy disagreement
alone, so the Guidelines were not truly advisory. (CV Doc. 18 at 6-10). Thus, his
argument goes, Beckles does not apply in this circumstance. Id. at 10. Respondent
replies that Beckles plainly applies and is fatal to Petitioner’s Motion. (CV Doc. 21 at 9).
Petitioner does not cite any case for the proposition that the difference between
advisory and mandatory Guidelines is the ability to disagree on policy grounds alone.
On the contrary, the Supreme Court appears to have consistently clarified that a district
court’s discretion must be grounded in the particular facts of a case. See Kimbrough v.
U.S., 552 U.S. 85, 110-111 (2007) (detailing district court’s consideration of sentencing
factors); Pepper v. U.S., 562 U.S. 476, 502 (2011) (explaining “that a district court may
in appropriate cases impose a non-Guidelines sentence based on a disagreement with
the Commission’s views,” including views based on Congressional policy) (emphasis
added); see also Gall v. U.S., 552 U.S. 38, 51 (2007) (providing reviewing court “must
give due deference to the district court’s decision that the § 3553(a) factors, on a whole,
justify the extent of the variance”). In Gall, the Supreme Court stated the sentencing
court must consider the facts of the case and adequately explain the chosen sentence.
Gall, 552 U.S. at 51. Notably, the Court stated “treating the Guidelines as mandatory”
constitutes procedural error. Id.
Petitioner cites three cases for the proposition that the career offender
enhancement was mandatory: United States v. Friedman, 554 F.3d 1301 (10th Cir.
2009); United States v. Garcia-Lara, 499 F.3d 1133 (10th Cir. 2007), judgment vacated
by Garcia-Lara v. United States, 533 U.S. 1016 (2008); and United States v. Vazquez,
558 F.3d 1224 (11th Cir. 2009), judgment vacated by Vazquez v. United States, 558

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U.S. 1144 (2010). None are persuasive. First, Vazquez did hold that a district court may
not rely on its disagreement with Congressional policy in sentencing. 558 F.3d 1224,
1229. However, Vazquez was vacated, 558 U.S. 1144, and on remand the district court
explained that the circumstances and other courts’ decisions indicated the Eleventh
Circuit’s holding was mistaken. U.S. v. Vazquez, 796 F. Supp. 2d 1370, 1375-76
(M.D.Fla. 2011). Further, Vazquez only bound courts in the Eleventh Circuit, not the
Tenth, which leaves open the question whether Petitioner’s sentencing court was
obligated to apply the career offender enhancement.
Second, Friedman did not hold that the career offender enhancement was
mandatory. Rather, Friedman held that the district court’s rejection of the Guidelines
recommended sentence, which included a career offender enhancement, was
substantively unreasonable. 554 F.3d at 1312. The Tenth Circuit so held because of the
defendant’s “extensive criminal history, failure to accept full responsibility for his actions,
and inability to grasp the impact of his virtually uninterrupted pattern of violent criminal
conduct.” Id. at 1309. In a footnote, the court discussed but did not decide whether
district courts could ignore career offender enhancements on policy reasons alone. Id.
at 1311 n.13.
Similarly, the Tenth Circuit in Garcia-Lara found a sentence substantively
unreasonable, but it did not hold that the career offender enhancement was mandatory.
599 F.3d at 1141. In fact, the Tenth Circuit took pains to clarify it did not consider the
Guidelines mandatory, stating:
[i]n recognizing the continued importance of the Guidelines, we do not
treat them as mandatory, as the dissent suggests. Indeed, we emphasize
that a court may, in its discretion, conclude that a non-Guidelines
sentence best serves the purposes of sentencing under [18 U.S.C.] §
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3553(a). But if a court exercises its discretion to disregard, or give little
weight to, the Guideline factors . . . in crafting a sentence, it must find
reasonable justification for doing so in the remaining § 3553(a) factors. A
court’s conclusion that the Guidelines are simply “wrong” or an inadequate
reflection of the statutory sentencing purposes is an unreasonable
application of the § 3553(a) factors unless the court can justify the
sentence imposed in light of that facts of the particular case considered
under § 3553(a).
Id. at 1137-38. To the extent the Tenth Circuit suggested a district court may not depart
from the Guidelines based on policy disagreement alone, that is consistent with the
Supreme Court precedent cited above.2
Petitioner essentially attempts to argue around Beckles’ clear holding. Petitioner
was sentenced in December 2007, nearly three years after the Supreme Court made
the Guidelines “effectively advisory.” See Booker v. United States, 543 U.S. 220, 245
(2005). In Beckles, the Supreme Court squarely held that the advisory Guidelines are
not unconstitutionally vague. Beckles, 137 S. Ct. at 894 (“If a system of unfettered
discretion is not unconstitutionally vague, then it is difficult to see how the present
system of guided discretion could be.”). Despite this, Petitioner continues to insist that
his sentence violates his right to due process because the Guidelines’ residual clause is
unconstitutionally vague. (CV Doc. 18 at 10) (“An imprisonment term that is increased
based on an unconstitutionally vague law exceeds the bounds of due process and is
plainly unlawful. The probation office cannot use the residual clause to define any of
[Petitioner’s] prior convictions as a crime of violence.”). Simply put, Beckles’ plain

2

The Court notes Garcia-Lara was vacated and remanded in light of Gall. 553 S. Ct. 1016. Gall held in
part that appellate courts may not require “extraordinary circumstances” to depart from Guidelines
sentences. 552 U.S. at 47. That part of the holding appears to implicate language in Garcia-Lara allowing
a departure from the Guidelines for “sufficiently compelling reasons.” 499 F.3d at 1140. Again, the Gall
Court explained that considering any part of the Guidelines mandatory was error. Id. at 51. To the extent
any part of Garcia-Lara remains good law, precedent is clear that no part of the Guidelines was
mandatory following Booker v. United States, 543 U.S. 220, 245 (2005).

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language forecloses Petitioner’s claim. The Court therefore finds that Petitioner’s Motion
does not survive Beckles and should be denied.
III.

Conclusion
For the foregoing reasons, the Court finds that because Petitioner was sentenced

when the Guidelines were advisory, Beckles conclusively forecloses Petitioner’s claims.
IT IS THEREFORE RECOMMENDED that Petitioner’s Motion to Correct Sentence
Under 28 U.S.C. § 2255 and 18 U.S.C. § 3582(c)(2), (CV Doc. 1), be DENIED and that
this case be DISMISSED WITH PREJUDICE. Additionally, the Court recommends a
Certificate of Appealability be DENIED.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF
SERVICE of a copy of these Proposed Findings and Recommended Disposition they
may file written objections with the Clerk of the District Court pursuant to 28 U.S.C. §
636(b)(1). A party must file any objections with the Clerk of the District Court
within the fourteen-day period if that party wants to have appellate review of the
proposed findings and recommended disposition. If no objections are filed, no
appellate review will be allowed.

THE HONORABLE CARMEN E. GARZA
UNITED STATES MAGISTRATE JUDGE

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