Gutierrez v. United States of America

Filing 19

Proposed Findings and Recommended Disposition by Magistrate Judge Carmen E. Garza. The Court RECOMMENDS that 7 Petitioner's MOTION to Vacate Sentence be DENIED as outlined in the PF&RD. Objections to PF&RD due by 7/11/2017. Ad d 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).) (atc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ANTHONY GUTIERREZ,
Petitioner,
v.

No.

CV 16-639 WJ/CG
CR 12-155 WJ

UNITED STATES OF AMERICA,
Respondent.
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court upon Petitioner Anthony Gutierrez’ 28 U.S.C.
§ 2255 Amended Motion to Vacate Sentence (“Motion”), (CV Doc. 7), filed September 8,
2016; Respondent United States’ Response to Defendant’s Amended Motion to Vacate
Sentence (“Response”), (CV Doc. 12), filed December 22, 2016; and Petitioner’s Reply
re Response to § 2255 Petition (“Reply”), (CV Doc. 16), filed January 20, 2017.1
United States District Judge William P. Johnson referred this case to Magistrate
Judge Carmen E. Garza to perform legal analysis and recommend an ultimate
disposition. (CV Doc. 18). After considering the parties’ filings, the record of the case,
and relevant law, the Court RECOMMENDS that Petitioner’s 28 U.S.C. § 2255
Amended Motion to Vacate Sentence, (CV Doc. 7) be DENIED, and that this case be
DISMISSED WITH PREJUDICE.
I.

Background
On January 26, 2012, a grand jury returned an indictment charging Petitioner

with: (1) Conspiracy to Commit Interference with Interstate Commerce by Robbery, in

1

Documents referenced as “CV Doc. ___” are from case number CV 16-639 WJ/CG. Documents
referenced as “CR Doc. ___” are from case number CR 12-155 WJ.

violation of 18 U.S.C. § 1951(a); (2) Interference with Interstate Commerce by Robbery
and Violence, in violation of 18 U.S.C. § 1951(a), and Aiding and Abetting, in violation of
18 U.S.C. § 2; (3) Using, Carrying and Possessing a Firearm During and in Relation to
and in Furtherance of a Crime of Violence, in violation of 18 U.S.C. § 924(c), and Aiding
and Abetting, in violation of 18 U.S.C. § 2; and (4) Felon in Possession of a Firearm and
Ammunition, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (CR Doc. 2). On
November 21, 2012, Petitioner pled guilty pursuant to a Fed. R. Civ. P. 11(c)(1)(C) plea
agreement to Counts 3 and 4 of the indictment. (CR Doc. 66 at 2). Petitioner’s
presentence report (“PSR”) provided that Petitioner was subject to a minimum 84-month
sentence for Count 3, and an advisory guideline range of an additional 46 to 57 months
for Count 4. (CV Doc. 12 at 2). In the plea agreement, the parties stipulated to a
sentence of 96 months. (CR Doc. 66 at 4). On March 27, 2013, Petitioner was
sentenced to 84 months as to Count 3, and 12 months as to Count 4, with the terms to
run consecutively for a total sentence of 96 months imprisonment. (CR Doc. 90 at 3).
Section 924(c) mandates an enhanced sentence for “any person who, during and
in relation to any crime of violence or drug trafficking crime . . . uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm.” § 924(c)(1)(A). A “crime
of violence” is defined in this statute as:
[A]n offense that is a felony and-(A) has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or
(B) that by its nature, involves a substantial risk that
physical force against the person or property of
another may be used in the course of committing the
offense.
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§ 924(c)(3)(A)-(B).
In his Motion, Petitioner contends that his 84-month mandatory sentence under §
924(c) for use of a firearm during a crime of violence is unconstitutional. (CV Doc. 7 at
2). Specifically, Petitioner argues that his predicate offenses of robbery and conspiracy
under § 1951(a) (the “Hobbs Act”) are no longer “crimes of violence” following the
United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015). Id. at 3. While the Supreme Court in Johnson struck down the Armed Career
Criminal Act’s (“ACCA”) residual clause, 18 U.S.C. 924(e)(2)(B)(ii), as unconstitutionally
vague, Petitioner contends that the residual clause of § 924(c)(3)(B) “is materially
indistinguishable from the ACCA residual clause.” Id. at 6. In addition, Petitioner
contends that Hobbs Act robbery and conspiracy do not qualify as crimes of violence
under § 924(c)(3)(A)’s force clause. Id. at 7-16. Therefore, Petitioner argues that there
is no legal basis for his § 924(c) conviction, and he asks the Court to dismiss Count 3 of
the indictment and resentence him. Id. at 17.
In response, Respondent first argues that Petitioner waived his right to
collaterally attack his convictions. (CV Doc. 12 at 2-7). Respondent further contends
that the holding in Johnson does not apply to § 924(c) because the residual clauses in
§ 924(c) and the ACCA are substantially different. Id. at 7-11. Finally, Respondent
argues that Hobbs Act robbery, Petitioner’s predicate offense, is a crime of violence
under § 924(c)(3)(A)’s force clause, without resort to § 924(c)(3)(B)’s residual clause. Id.
at 11-15.

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II.

Standard of Review Under 28 U.S.C. § 2255
Section 2255 provides that a federal prisoner may challenge his sentence if: (1) it

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. 28 U.S.C. § 2255(a). If the court finds that a sentence infringed upon 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).
III.

Analysis

A. Whether Petitioner Waived His Right to File This Motion Under § 2255
Petitioner’s plea agreement includes a “Waiver of Appeal Rights,” which states:
[Petitioner] knowingly waives the right to appeal [his]
conviction(s) and any sentence, including any order of
restitution, within the statutory maximum authorized by law
and imposed in conformity with this plea agreement. In
addition, [Petitioner] agrees to waive any collateral attack to
[his] conviction(s) pursuant to 28 U.S.C. § 2255, except on
the issue of counsel’s ineffective assistance in negotiating or
entering this plea or this waiver.
(CR Doc. 66 at 6).
A petitioner’s waiver of his right to collateral attack under § 2255 “is generally
enforceable where the waiver is expressly stated in the plea agreement.” United States
v. Cockerham, 237 F.3d 1179, 1183 (10th Cir. 2001). When a petitioner waives the right
to collaterally attack his sentence in a plea agreement but later files a § 2255 motion,
courts must decide: (1) whether the collateral attack falls within the scope of the waiver;
(2) whether the petitioner knowingly and voluntarily waived his right to collateral review;
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and (3) whether enforcing the waiver would result in a miscarriage of justice. United
States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004). The Court must “strictly
construe[]” the waiver’s scope, and “any ambiguities . . . will be read against the
Government and in favor of” the petitioner’s right to collateral review. Id. (citation
omitted).
1. Within the Scope of the Waiver
Petitioner agreed to waive his right to collaterally attack his conviction pursuant to
28 U.S.C. § 2255, except on the issue of his counsel’s ineffective assistance in
negotiating or entering the plea or waiver. (CR Doc. 66 at 6). Petitioner’s claim is a
collateral attack on his conviction, brought pursuant to 28 U.S.C. § 2255, and Petitioner
does not allege that his counsel was ineffective in negotiating the plea or the waiver.
Therefore, the Court finds that Petitioner’s claim falls within the scope of the waiver.
2. Knowing and Voluntary
The plea agreement clearly states the nature of the waiver, and Petitioner
“agree[d] and represent[ed] that this plea of guilty is freely and voluntarily made.” (CR
Doc. 66 at 6-7). Petitioner also represented:
I understand the terms of this Agreement, and I voluntarily
agree to those terms. My attorney has advised me of my
rights, of possible defenses, of the sentencing factors set
forth in 18 U.S.C. § 3553(a), of the relevant Sentencing
Guidelines provisions, and of the consequences of entering
into this Agreement. No promises or inducements have been
given to me other than those contained in this agreement.
No one has threatened or forced me in any way to enter into
this Agreement. Finally, I am satisfied with the
representation of my attorney in this matter.
Id. at 8-9. Petitioner’s attorney represented that she had “carefully discussed every part
of this agreement with [her] client,” and that to her knowledge, Petitioner’s “decision to
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enter into this agreement is an informed and voluntary one.” Id. at 8. At Petitioner’s
change of plea hearing, the District Judge accepted Petitioner’s plea, finding that
Petitioner “fully understands the charge(s), terms of plea, and consequences of entry
into plea agreement,” and that the plea was “freely, voluntarily, and intelligently made.”
(CR Doc. 68). Based on this evidence, and noting that Petitioner does not dispute that
he knowingly and voluntarily agreed to the waiver, the Court finds that Petitioner
knowingly and voluntarily waived his right to collaterally attack his sentence.
3. Miscarriage of Justice
While Petitioner does not dispute that his Motion falls within the scope of the
waiver, or that he knowingly and voluntarily waived his right to collateral review,
Petitioner does argue that enforcing the waiver would result in a miscarriage of justice.
(CV Doc. 16 at 7-11). The Tenth Circuit has explained that enforcement of a waiver
results in a miscarriage of justice in four situations: “[1] where the district court relied on
an impermissible factor such as race, [2] where ineffective assistance of counsel in
connection with the negotiation of the waiver renders the waiver invalid, [3] where the
sentence exceeds the statutory maximum, or [4] where the waiver is otherwise
unlawful.” Hahn, 359 F.3d at 1327. “This list is exclusive; enforcement of an appellate
waiver does not result in miscarriage of justice unless enforcement would result in one
of the four situations enumerated above.” United States v. Polly, 630 F.3d 991, 1001
(10th Cir. 2011) (citation omitted). Additionally, error does not make a waiver “otherwise
unlawful” unless it “seriously affect[s] the fairness, integrity or public reputation of
judicial proceedings.” Hahn, 359 F.3d at 1327 (citation omitted).

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Petitioner makes no suggestion, nor is there any evidence before the Court, that
any of the first three situations are implicated here. Petitioner argues, however, that
enforcement of the waiver would result in a miscarriage of justice because Petitioner’s
sentence is based on § 924(c)’s residual clause, which is unconstitutional pursuant to
Johnson. (CV Doc. 16 at 8-11).2 Petitioner relies on United States v. Madrid, 805 F.3d
1204, 1212 (10th Cir. 2015), in which the Tenth Circuit found that the imposition of an
enhanced sentence pursuant to the unconstitutionally vague residual clause in the
Sentencing Guidelines undermined the fundamental fairness of the defendant’s
sentencing hearing. Id. at 8-9. Petitioner also relies on United States v. Daugherty, No.
07-CR-87-TCK, 2016 WL 4442801 (N.D. Okla. Aug. 22, 2016) (unpublished), in which
the district court found that it would be a miscarriage of justice to enforce a collateralattack waiver in a post-conviction attack based on Johnson. Id. at 9. Finally, Petitioner
relies on several cases outside the Tenth Circuit where courts have declined to enforce
collateral-attack waivers in cases raising Johnson claims. Id. at 10-11 (citing cases from
the Ninth and Sixth Circuits, the Western District of New York, the Eastern District of
Michigan, the Southern District of California, the Eastern District of Washington, and the
District of Oregon).
The Court finds Petitioner’s reliance on Madrid and Daugherty unpersuasive. In
Madrid, the Tenth Circuit considered whether the defendant forfeited his right to object
to his sentence by failing to assert that the residual clause in § 4B1.2(a)(2) was void for
vagueness. Madrid, 805 F.3d at 1211. Forfeiture is the failure to timely assert a right or
2

It is important to note that Respondent argues in its response to Petitioner’s Motion that the Johnson
holding does not apply to § 924(c), and that, regardless, Petitioner’s predicate offenses qualify as crimes
of violence under § 924(c)’s force clause. (CV Doc. 12 at 7-15). Nevertheless, because the validity of the
collateral attack waiver in Petitioner’s plea agreement is not dependent on the merits of Petitioner’s
underlying claim, and because the Court finds below that the waiver is enforceable, the Court does not
reach these issues.

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the failure to timely object to the violation of a right. See United States v. Olano, 507
U.S. 725, 733 (1993); United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th
Cir. 2007). Waiver, on the other hand, is the “intentional relinquishment or abandonment
of a known right.” Olano, 507 U.S. at 733 (internal quotation marks omitted). Forfeiture
occurs through neglect, whereas waiver is intentional. See Carrasco-Salazar, 494 F.3d
at 1272. In other words, unlike the defendant in Madrid, who had forfeited his right to
object to his sentence by failing to assert that the residual clause in § 4B1.2(a)(2) was
void for vagueness, Petitioner intentionally relinquished his right to collaterally attack his
conviction, regardless of the merits of any claims he may have had.
In United States v. Frazier-LeFear, 665 Fed. Appx. 727, 732-33 (10th Cir. 2016)
(unpublished), the Tenth Circuit considered the Madrid holding in the context of whether
a collateral-attack waiver was unlawful. The Tenth Circuit held that it is not a
miscarriage of justice to enforce a defendant’s waiver to collaterally attack his sentence
with respect to a claim raised in light of the Johnson decision. Id. In so holding, the
Tenth Circuit abrogated the holding in Daugherty, stating that “[t]he analytical mistake in
Daugherty” stems from Tenth Circuit precedent “explaining [that] Hahn’s fourth
miscarriage-of-justice exception makes it clear that it is the waiver, not some other
aspect of the proceeding, that must be unlawful to undermine the waiver.” 665 Fed.
Appx. 732. Thus, an error rendering a waiver “otherwise unlawful” must relate to the
waiver itself, not to another aspect of the proceedings, such as the validity of a
defendant’s conviction or sentence. See United States v. Sandoval, 477 F.3d 1204,
1208 (10th Cir. 2007) (“Our inquiry [under the fourth exception] is not whether the
sentence is unlawful, but whether the waiver itself is unlawful because of some

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procedural error or because no waiver is possible.”). That an error is based on a
constitutional claim or an intervening change in the law does not change this analysis.
See Frazier-LeFear, 665 Fed. Appx. at 773 (“Given our own precedent enforcing
waivers with respect to both changes in law and claims of constitutional error (except
those which render the waiver itself unlawful), this panel is not in a position at this late
date to recognize a limitation on waiver[s] for constitutional challenges to sentence[s]
based on post-plea changes in law.”).
Here, Petitioner does not argue that his waiver of appeal rights is itself unlawful
or improper. Instead, he contends that, because the residual clause of § 924(c) has
been rendered unconstitutional by Johnson, his “sentence undermines the fundamental
fairness of a sentence and causes a miscarriage of justice.” (CV Doc. 16 at 11). As
explained by the Tenth Circuit:
The essence of plea agreements . . . is that they represent a
bargained-for understanding between the government and
criminal defendants in which each side foregoes [sic] certain
rights and assumes certain risks in exchange for a degree of
certainty as to the outcome of criminal matters. One such
risk is a favorable change in the law. To allow defendants or
the government to routinely invalidate plea agreements
based on subsequent changes in the law would decrease
the prospects of reaching an agreement in the first place, an
undesirable outcome given the importance of plea
bargaining to the criminal justice system.
Frazier-LeFear, 665 Fed. Appx. at 730 (alterations in original). Moreover, “[a] defendant
may preserve appellate rights in this respect . . . by including an explicit exception in his
waiver for favorable changes in the law.” Id. at 730, n.3.
Because Petitioner has not alleged any error that relates to the appellate waiver
itself, the Court finds that the waiver is enforceable under Frazier-LeFear. Additionally,

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because Tenth Circuit law on this issue is clear and binding on this Court, the Court
finds it unnecessary to distinguish the out-of-circuit cases relied on by Petitioner.
IV.

Recommendation
For the foregoing reasons, the Court finds that Petitioner knowingly and

voluntarily waived his right to bring the claim he asserts in his Motion, and that enforcing
the waiver would not constitute a miscarriage of justice. Therefore, the Court
RECOMMENDS that Petitioner’s 28 U.S.C. § 2255 Amended Motion to Vacate
Sentence, (CV Doc. 7) be DENIED, and that this case be DISMISSED WITH
PREJUDICE. The Court also RECOMMENDS that 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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