Rojas v. United States of America

Filing 3

MEMORANDUM OPINION AND ORDER dismissing 1 MOTION to Set Aside Judgment and Correct the Sentence Pursuant to 28 USC sec. 2255 by Chief Judge M. Christina Armijo. (vv)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
vs.

No. CV 16-00675 MCA/KBM
No. CR 05-01618 MCA

DANIEL ROJAS,
Defendant-Movant.

MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court under rule 4(b) of the Rules Governing Section
2255 Proceedings on the Motion to Set Aside the Judgment and Correct the Sentence Pursuant to
28 U.S.C. § 2255 filed by Movant Daniel Rojas on June 24, 2016 (CV Doc. 1; CR Doc. 42).
Rojas seeks to vacate and correct his sentence under Johnson v. United States, 578 U.S. ___, 135
S.Ct. 2551 (2015). The Court determines that Rojas is not eligible for relief under Johnson and
will dismiss the Motion.
FACTUAL AND LEGAL BACKGROUND
Rojas was indicted on August 23, 2005 on five counts: Count 1 and Count 3—18 U.S.C.
§ 1951(a)(1) Interference with Commerce by Threats or Violence; Count 2 and Count 4—18
U.S.C. § 924(c)(1)(A)(ii) Using and Carrying a Firearm During and in Relation to a Crime of
Violence; and Count 5—18 U.S.C. § 922(g)(1) and 18 U.S.C. § 924(a)(2) Felon in Possession of
a Firearm and Ammunition. (CR Doc. 16). The Superceding Indictment stated:
“Count 3 On or about 1st day of July, 2005, in Bernalillo County, State
and District of New Mexico, the defendant, Daniel Rojas, did unlawfully
obstruct, delay and affect, and attempt to obstruct, delay and affect,
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commerce . . .by robbery as that term is defined in Section 1951,
in that the defendant did unlawfully take and obtain personal property
consisting of cash form the presence of Emad Al-Sultan, who was
operating the Better Deal Auto Sales, against his will by means of actual
and threatened force, violence, and fear of injury, immediate and
future, to his person, that is, by shooting him with a firearm at the
Better Deal Auto Sales.”
“Count 4 On or about the 1st day of July, 2005, in Bernalillo County, State
and District of New Mexico, the defendant, Daniel Rojas, did use and
carry a firearm, that is, a pistol, during and in relation to a crime of
violence for which he may be prosecuted in a court of the United States,
namely Interference with Commerce by threats and violence as charge
in Count 3 of this Indictment. . .”
(CR Doc. 16 at 2-3). On February 2, 2006, Rojas entered into a rule 11(c)(1)(C) Plea Agreement
in which he pled guilty to Counts 3 and 4 of the Superceding Indictment and agreed to a 24-year
term of imprisonment. (CR Doc. 32 at 2-3). Rojas was then sentenced to the agreed term of
imprisonment of 24 years. (CR Doc. 40).
Rojas filed his Motion under 28 U.S.C. § 2255 on June 24, 2016. (CV Doc. 1; CR Doc.
42). Rojas contends that Johnson invalidates the residual clause of 18 U.S.C. § 924(c)(3)(B) and
that Hobbs Act robbery is not a crime of violence as defined in the elements or force clauses of §
923(c). (CV Doc. 1 at 4-17; Cr Doc. 42 at 4-17).
APPLICABLE LAW ON JOHNSON V. UNITED STATES
AND SECTION 2255 COLLATERAL REVIEW
Rojas seeks collateral review of his sentences in CR 07-02238 and CR 08-03048 under
28 U.S.C. § 2255. Section 2255 provides:
“A prisoner in custody under a sentence of a court established by
Act of Congress claiming the right to be released upon the ground
that the sentence was imposed in violation of the Constitution or
laws of the United States, or that the court was without jurisdiction
to impose such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.”
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28 U.S.C. § 2255(a). Because Rojas seeks collateral review more than a year after his
sentences became final, he relies on a right newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review in Johnson and Welch v. United States, 578
U.S. ___, 136 S.Ct. 1257 (2016). See 28 U.S.C. § 2255(f)(3).
In Johnson, the Supreme Court held that the residual clause of the Armed Career
Criminal Act (“ACCA”) is impermissibly vague and imposing an increased sentence under the
residual clause of 18 U.S.C. § 924(e)(2)(B) violates the Constitution’s guarantee of due process.
135 S.Ct. at 2562-2563. Under the ACCA, a defendant convicted of being a felon in possession
of a firearm faces more severe punishment if he has three or more previous convictions for a
“violent felony.” 18 U.S.C. § 924 (e)(2)(B). The Act defines “violent felony” to mean:
“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; 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) (emphasis added).

The Johnson Court struck down the

italicized residual clause language of § 924(e)(2)(B)(ii) as unconstitutionally vague. 135 S.Ct. at
2555-2563. The language of § 924(e)(2)(B)(i), which defines “violent felony” to mean a crime
that “has as an element the use, attempted use, or threatened use of physical force,” is commonly
referred to as the “element” or “force” clause. The “enumerated” clause is the language of §
924(e)(2)(B)(ii) that lists the crimes of burglary, arson, extortion, or the use of explosives as
violent felonies. The Supreme Court expressly stated that its holding with respect to the residual
clause does not call into question application of the Act to the four enumerated offenses or the
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remainder of the definition of a violent felony in § 924(e)(2)(B). 135 S.Ct. at 2563. Therefore,
the Johnson decision has no application to sentences enhanced under the force or element clause
of § 924(e)(2)(B)(i) or the enumerated clause of § 924(e)(2)(B)(ii).
ANALYSIS OF MOVANT ROJAS’ CLAIM
I. JOHNSON DOES NOT CLEARLY INVALIDATE THE RESIDUAL CLAUSE
OF § 924(c):
Rojas’ sentence was not enhanced under § 924(e)(2)(B) of the ACCA. Instead, Rojas
argues that the Johnson ruling should be applied to the residual clause of 18 U.S.C. § 924(c).
The question of whether Johnson applies to invalidate the residual clause language of § 924(c) is
an unsettled question. In Johnson, the Supreme Court indicated that its ruling did not place the
language of statutory provisions like the § 924(c)(3)(B) residual clause in constitutional doubt.
135 S.Ct. at 2561.The lower courts have divided on the question of application of the Johnson
ruling to § 924(c) and similarly-worded provisions. Compare United States v. Hill, 832 F.3d
135, 146 (2nd Cir. 2016), United States v. Taylor, 814 F.3d 340, 375-79 (4th Cir. 2016), and
United States v. Prickett, 839 F.3d 697, 699 (8th Cir. 2016) ( declining to find § 924(c) void for
vagueness) with United States v. Vivas-Ceja, 808 F.3d 719, 723 (7th Cir. 2015) (finding language
similar to § 924(c) void for vagueness); Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015)
(holding similar language in the Immigration and Nationality Act void); In re Smith, ___ F.3d
___, 2016 WL 3895243 at *2-*3 (11th Cir. 2016) (noting the issue but not deciding it in the
context of an application for permission to file a second or successive § 2255 motion).
Courts have cited several grounds that distinguish the ACCA § 924(e)(2)(B) residual
clause from § 924(c)(3)(B). First, the statutory language of § 924(c)(3)(B) more narrowly defines
“crime of violence” based on physical force rather than physical injury. While the ACCA
residual clause simply requires conduct “that presents a serious potential risk of physical injury
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to another,” § 924(c)(3)(B) requires the risk “that physical force against the person or property of
another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(B)
(emphasis added). By requiring that the risk of physical force arise “in the course of” committing
the offense, the language of § 924(c)(3)(B) mandates that the person who may potentially use
physical force be the charged offender. See United States v. Taylor, 814 F.3d at 376-77.
Moreover, § 924(c)(3)(B), unlike § 924(e)(2)(B), requires that the felony be one which
“by its nature” involves the risk that the offender will use physical force. In Johnson, the
Supreme Court was concerned with the wide judicial latitude permitted by the ACCA’s residual
clause language that did not limit a court’s inquiry to the elements of the crime. 135 S.Ct. at
2557. Section 924(c)(3)(B), by contrast, does not allow a court to consider risk-related conduct
beyond the elements of the predicate crime. The phrase “by its nature” restrains the court’s
analysis to the risk of force in the offense, itself. See United States v. Amos, 501 F.3d 524, 527
(6th Cir.2007), United States v. Stout, 706 F.3d 704, 706 (6th Cir.2013). United States v. Serafin,
562 F.3d 1105, 1109, 1114 (10th Cir.2009); see also Leocal v. Ashcroft, 543 U.S. 1, 10 (2004)
(construing the language of 18 U.S.C. § 16(b)).
Second, the Johnson Court was concerned that the enumerated crimes in the ACCA,
when paired with the residual clause, cause confusion and vagueness in the application of the
residual clause. 135 S.Ct. at 2561. The lower courts have noted no similar concerns with §
924(c)(3)(B). The ACCA links the residual clause by the word “otherwise” to the four
enumerated crimes. Johnson, 135 S.Ct. at 2558. The Johnson Court explained that by using the
word “otherwise,” “the residual clause forces courts to interpret ‘serious potential risk’ in light of
the four enumerated crimes—burglary, arson, extortion, and crimes involving the use of
explosives.” Id. Gauging the level of risk required was difficult because the four listed crimes

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“are ‘far from clear in respect to the degree of risk each poses.’ ” Id. (quoting Begay v. United
States, 553 U.S. 137, 143, (2008)). Unlike the ACCA, § 924(c)(3)(B) does not link its
“substantial risk” standard “to a confusing list of examples.” Johnson, 135 S.Ct. at 2561.
The Johnson Court addressed the fact that the ACCA residual clause requires the
application of a categorical approach to analysis of the predicate crime. Johnson, 135 S.Ct. at
2557–58. The Court refrained from invalidating the categorical analysis. Id. at 2561–62. Instead,
the Court stated that the ordinary case analysis and the level-of-risk requirement “conspire[d] to
make [the statute] unconstitutionally vague,” and determined that the concern with the ACCA
residual clause was that it combined an overbroad version of the categorical approach with other
vague elements. Id. at 2557. Statutes like Section § 924(c)(3)(B)’s residual clause do not raise
the same analytical concerns when combined with the categorical approach. Id. at 2561.
Third, the Supreme Court reached its void-for-vagueness conclusion only after deciding a
number of cases calling for interpretation of the clause. See e.g. James v. United States, 550 U.S.
192 (2007); Begay v. United States, 553 U.S. 137 (2008); Chambers v. United States, 555 U.S.
122 (2009); Sykes v. United States, 564 U.S. 1 (2011). In Johnson, the Court recognized its
“repeated attempts and repeated failures to craft a principled and objective standard out of the
residual clause.” 135 S.Ct. at 2558. In the nine years preceding Johnson, the Court had applied
four different analyses to the residual clause. See id. at 2558–59. These inconsistent decisions led
to “pervasive disagreement about the nature of the inquiry one is supposed to conduct and the
kinds of factors one is supposed to consider.” Id. at 2560. By contrast, the Supreme Court has not
been called on multiple occasions to articulate a standard applicable to the § 924(c)(3)(B)
analysis.
The question of whether the reasoning of Johnson should extend to the residual clause of

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§ 924(c)(3)(B) remains unsettled. However, the Court need not determine in this case whether
Johnson should apply to invalidate the residual clause of § 924(c)(3)(B). As set out, below, even
if Johnson was extended to § 924(c), Rojas’ predicate robbery crime comes within the force or
element clause, not the residual clause, and he is not eligible for resentencing.1
II. HOBBS ACT ROBBERY IS A CRIME OF VIOLENCE UNDER THE
“FORCE” OR “ELEMENT” CLAUSE OF § 924(c):
Under 18 U.S.C. § 924(c)(1)(A), a defendant who “uses or carries” a firearm “during and
in relation to any crime of violence” faces a five-year mandatory minimum sentence, to run
consecutively to any sentence for the underlying offense. See United States v. Johnson, 32 F.3d
82, 85 (4th Cir.1994). If, during the commission of the crime of violence, “the firearm is
discharged,” the mandatory minimum sentence increases to ten years. See § 924(c)(1)(A)(iii).
Section 924(c)(3) defines “crime of violence” to mean:
“[A]n offense that is a felony and—
(A) has as an element the 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.”
18 U.S.C. § 924(c)(3). Rojas contends that his Hobbs Act robbery conviction does not
qualify as a crime of violence under the “force” or “element” clause of § 924(c)(3)(A) and,
therefore, must come within the presumably invalid residual clause language of § 924(c)(3)(B).
Contrary to Rojas’ argument, the robbery crime charged against Rojas clearly has as an element
the use, or threatened use of physical force against the person or property of another and support
enhancement of his sentence under § 924(c) without resort to the residual clause language.

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  There is also a question as to whether, in light of his 11(c)(1)(C) Plea Agreement to a

specified term of imprisonment, Rojas was actually sentenced under § 924(c). See CR Doc. 32 at
¶ 6.a. However, because the Court concludes that, even if he was sentenced under § 924(c),
Rojas would not be eligible for resentencing, the Court does not reach the 11(c)(1)(C) issue.
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To determine whether a prior conviction constitutes a crime of violence under the force
or element clause, the Court employs a categorical approach. United States v. Perez–Jiminez,
654 F.3d 1136, 1140 (10th Cir.2011). The Court looks only to the fact of conviction and the
statutory definition of the prior offense, and does not generally consider the particular facts
disclosed by the record of conviction. United States v. Wray, 776 F.3d 1182, 1185 (10th Cir.
2015). Where a statute defines multiple crimes by listing alternative elements, the Court utilizes
a modified categorical approach, which permits the Court to look at the charging documents to
determine the elements under which the defendant was charged and convicted. See Mathis v.
United States, ___ U.S. ___, 136 S.Ct. 2243, 2248-49 (2016).
The Hobbs Act provides:
“Whoever in any way or degree obstructs, delays, or affects commerce
or the movement of any article or commodity in commerce, by robbery,
or extortion or attempts to or conspires to do , or commits or threatens
physical violence to any person or property in furtherance of a plan or
purpose to do anything in violation of this section shall be fined under or
imprisoned not more than twenty years, or both.”
18 U.S.C. § 1951(a). The Hobbs Act defines “robbery” to mean:
“The unlawful taking or obtaining of personal property from the person
or in the presence of another, against his will, by means of actual of
threatened force, or violence or fear of injury, immediate or future, to his
person or property.”
18 U.S.C. § 1951(b)(1).
The Circuit courts are in agreement that Hobbs Act robbery is a crime of violence under
the force clause of § 924(c). See Hill, 832 F.3d 135, 144 (2nd Cir. 2016) (“[W]e agree ... that
Hobbs Act robbery ‘has as an element the use, attempted use, or threatened use of physical
force against the person or property of another.’ ”); see also United States v. Howard, 650 Fed.
App’x 466, 468 (9th Cir. 2016) (explaining “that Hobbs Act robbery indisputably qualifies as a
crime of violence under” § 924(c)(3)(A)) (internal quotes and brackets omitted); see also In re
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Fleur, 824 F.3d 1337, 1341 (11th Cir. 2016) (holding that Hobbs Act robbery “meets the useof-force clause of the definition of a crime of violence under § 924(c)(3)(A)”); Cf. United
States v. House, 825 F.3d 381, 387 (8th Cir. 2016) (concluding that defendant’s Hobbs Act
robbery conviction qualifies as a serious violent felony under 18 U.S.C. § 3559(c) because it
“has as an element the use, attempted use, or threatened use of physical force against the
person of another”).
The courts have uniformly ruled that federal statutory crimes involving takings by force,
violence, or intimidation, have as an element the use, attempted use, or threatened use of
physical force. In United States v. Boman, 810 F.3d 534 (8th Cir.2016) the Eighth Circuit held
that robbery in the special maritime and territorial jurisdiction of the United States under 18
U.S.C. § 2111 satisfied the similarly worded force clause in the Armed Career Criminal Act
(“ACCA”), because it required a taking “by force and violence, or by intimidation.” Boman, 810
F.3d at 542–43. The Second and Eleventh Circuits reached the same conclusion with respect to
the carjacking statute, 18 U.S.C. § 2119. See United States v. Moore, 43 F.3d 568, 572–73 (11th
Cir.1994); United States v. Mohammed, 27 F.3d 815, 819 (2d Cir.1994). The Fourth Circuit
expressly stated in Adkins, that “armed bank robbery is unquestionably a crime of violence,
because it ‘has as an element the use, attempted use, or threatened use of physical force against
the person or property of another.’ ” See 937 F.2d at 950 n. 2 (quoting 18 U.S.C. § 924(c)(3)(A)).
The courts have also consistently determined that a § 2113(a) bank robbery is a crime of violence
under the force clause of Guidelines section 4B1.2, which contains force clause language nearly
identical to the § 924(c)(3) force clause. See Johnson v. United States, 779 F.3d 125, 128–29 (2d
Cir.2015); United States v. Davis, 915 F.2d 132, 133 (4th Cir.1990); United States v. Maddalena,
893 F.2d 815, 819 (6th Cir.1989); United States v. Jones, 932 F.2d 624, 625 (7th Cir.1991);

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United States v. Wright, 957 F.2d 520, 521 (8th Cir.1992); United States v. Selfa, 918 F.2d 749,
751 (9th Cir.1990). Under the law, a robbery “by force and violence” entails the use of physical
force.
Rojas points to the “fear of injury” language in the statute and contends that a conviction
based on “fear of injury” is insufficient to constitute a crime of violence. However, Rojas was
expressly charged with and pled guilty to robbery by means of actual and threatened force,
violence, and fear of injury. (CR Doc. 16 at 2-3; Doc. 32 at 2). He was charged with and
convicted of robbery by force as well as robbery by violence and fear of injury. Regardless of
whether “fear of injury” has as an element the threatened use of physical force, Rojas was
convicted of crimes that include an element that is the use, attempted use, or threatened use of
physical force. Hill, 832 F.3d at 144. Rojas’ sentence was properly enhanced under the force
clause of § 924(c)(3)(A) and without resort to the residual clause of § 924(c)(3)(B), he is not
entitled to relief, and the Court will dismiss his Motion under rule 4(b) of the Rules Governing
Section 2255 Proceedings.
Under 28 U.S.C. § 2253(c)(1) and (3), the Court determines that Rojas has made a
substantial showing of denial of a constitutional right.

The Court will, therefore, grant a

certificate of appealability. See rule 11(a) of the Rules Governing Section 2255 Proceedings.
IT IS ORDERED that the Motion to Set Aside the Judgment and Correct the Sentence
Pursuant to 28 U.S.C. § 2255 filed by Movant Daniel Rojas on June 24, 2016 (CV Doc. 1; CR
Doc. 42) is DISMISSED under rule 4(b) of the Rules Governing Section 2255 Proceedings; and
a Certificate of Appealability is GRANTED under rule 11(a).

_______________________________
UNITED STATES DISTRICT JUDGE

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