Baca-Olivas v. United States of America
Filing
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MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge Judith C. Herrera. 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) is dismissed with prejudice and a certificate of appealability is denied. (baw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
v.
No. 16-CV-00684-JCH-GJF
No. 11-CR-00410-JCH
ENRIQUE BACA-OLIVAS,
Defendant.
MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court, sua sponte under rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts, on Defendant Enrique Baca-Olivas’s Pro
Se Motion To Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 [CV Doc. 1; CR
Doc. 56], filed on June 24, 2016. In his § 2255 motion, Defendant seeks to vacate his sentence in
in light of the United States Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551
(2015), which invalidated the residual clause definition of a violent felony in the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). [CV Doc. 1; CR Doc. 56] Because
Defendant’s sentence was not enhanced under the ACCA for a violent felony, or under the United
States Sentencing Guidelines (U.S.S.G.) for a crime of violence, his § 2255 motion will be
dismissed with prejudice, a certificate of appealability will be denied, and judgment will be
entered.
Pursuant to a plea agreement under Fed. R. Crim. P. 11(c)(1)(C), Defendant pleaded guilty
to Count I of the Indictment charging him with Possession with Intent to Distribute 500 Grams and
More of a Mixture and Substance Containing Methamphetamine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A) and Count 4 of the Indictment charging him with being an Alien in
Possession of a Firearm in violation of 922(g)(5) and 924(a)(2). Defendant and the United States
stipulated and agreed to a sentence of one hundred and twenty (120) months, with no further
reduction to occur. [CR Doc. 12, 39, 40, 43, 46] Additionally, Defendant agreed “to waive any
collateral attack to the Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue
of counsel’s ineffective assistance in negotiating or entering” into the plea agreement. [CR Doc.
39]
The Probation Office produced a Presentence Investigation Report (PSR), which noted that
“Counts 1 and 4 are grouped together pursuant to U.S.S.G. § 3D1.2(c), as count 4 embodies
conduct that is treated as a specific offense characteristic in the guideline applicable to Count 1.”
[PSR at 8] Under U.S.S.G. § 3D1.3(a) “the offense level applicable to a Group is the offense
level . . . for the most serious of the counts comprising the Group, i.e., the highest offense level of
the counts in the Group.” U.S.S.G. § 3D1.3(a). Because “[t]he offense level resulting from an
application of Count 1, results in a higher offense level than for Count 4,” the guideline for Count
1, Possession with Intent to Distribute 500 Grams and More of a Mixture and Substance
Containing Methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), was applied.
[PSR at 8]
Under U.S.S.G. § 2D1.1(a)(5), the base offense level for a violation of 21 U.S.C. §
841(a)(1) and (b)(1)(A) depends on the quantity of drugs “specified in the Drug Quantity Table.”
U.S.S.G. § 2D1.1(a)(5).
The PSR determined that Defendant was accountable for
“methamphetamine—668.3 net grams (562.7 grams actual); cocaine—1.1 net grams; and
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marijuana—1.3 net kilograms,” resulting in a base offense level of 36 under the Drug Quantity
Table. [PSR at 8] Defendant’s base offense level was increased by two points under U.S.S.G. §
2D1.1(b)(1), because he possessed firearms in connection with his drug trafficking activities.
[PSR at 9] Defendant’s base offense level was increased by another two points under U.S.S.G. §
2D1.1(b)(12), because he maintained a premises for the purposes of manufacturing or distributing
a controlled substance, resulting in an adjusted offense level of 40. [PSR at 9] Defendant
received a three-point reduction in his adjusted offense level under U.S.S.G. § 3E1.1 because he
had demonstrated an acceptance of responsibility for the offense, resulting in a total offense level
of 37. [PSR at 9-10]
With respect to Defendant’s criminal history, he received two criminal history points under
U.S.S.G. 4A1.1(c) for two prior convictions. Two criminal history points placed Defendant in a
criminal history category of II. [PSR at 11]
Based on a total offense level of 37 and a criminal
history category of II, the PSR determined that the guideline imprisonment range was 235 to 293
months as to Count 1 and 120 months as to Count 4. [PSR Doc. 16]
The Court adopted the findings in the PSR, accepted the plea agreement, and imposed a
term of 120 months of imprisonment as to Count 1 and a term of 120 months of imprisonment as to
Count 4; said terms to run concurrently with each other, for a total term of 120 months of
imprisonment, consistent with the plea agreement. [CR Docs. 43, 46] Additionally, the Court
imposed a five-year term of supervised release as to Count 1, and a three-year term of supervised
release as to Count 4; said terms to run concurrently with each other, for a total term of 5 years of
supervised release. [CR Doc. 46] The Court entered judgment on Defendant’s convictions and
sentence on March 28, 2012, followed by an amended judgment on April 3, 2012. [CR Docs. 44,
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46] Defendant did not appeal from the judgment of conviction.
On June 24, 2016, Defendant filed the present § 2255 motion, which seeks sentencing
relief under Johnson. [CV Doc. 1; CR Doc. 56] In Johnson, the United States Supreme Court
considered whether the residual clause of the ACCA violates the due process clause of the United
States Constitution. In general, the maximum term of imprisonment for a defendant convicted of
being a felon in possession of a firearm is ten years. See 18 U.S.C. § 924(a)(2). “But if the
violator has three or more earlier convictions for a ‘serious drug offense’ or a ‘violent felony,’ the
Armed Career Criminal Act increases his prison term to a minimum of 15 years and a maximum of
life.” Johnson, 135 S.Ct. at 2555 (quoting § 924(e)(1)). The ACCA defines a “violent felony”
as follows:
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 use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another
§ 924(e)(2)(B) (emphasis added). In Johnson, the Court held that the residual clause of
§924(e)(2)(B)(ii), which is the italicized portion excerpted above, “denies fair notice to defendants
and invites arbitrary enforcement by judges.” Johnson, 135 S. Ct. at 2557. Therefore,
“imposing an increased sentence under the residual clause of the Armed Career Criminal Act
violates the Constitution’s guarantee of due process.” Id. at 2563. The Supreme Court’s holding
in Johnson is applicable retroactively to cases on collateral review. See Welch v. United States,
136 S. Ct. 1257 (2016).
In the present case, Defendant’s sentence was not enhanced under § 924(e)(2)(B) of the
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ACCA. The Court recognizes that the U.S.S.G. contains a residual clause definition for a “crime
of violence,” which is virtually identical to the one invalidated in Johnson. See U.S.S.G. § 4B1.2
(defining a “crime of violence” as “any offense under federal or state law, punishable by
imprisonment for a term exceeding one year, that-- (1) has an element the use, attempted use, or
threatened use of physical force against the person of another, or (2) is burglary of a dwelling,
arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.” (emphasis added)). In United States v.
Madrid, 805 F.3d 1204, 1210 (10th Cir. 2015), the United States Court of Appeals for the Tenth
Circuit Court held that “[t]he concerns about judicial inconsistency that motivated the Court in
Johnson, lead us to conclude that the residual clause of the Guidelines is also unconstitutionally
vague.”1 However, Defendant’s sentence was not enhanced under the U.S.S.G. for a crime of
violence, much less under the residual clause definition of a crime of violence. Rather, as
explained above, Defendant’s offense level was calculated based on U.S.S.G. §§ 2D1.1(a)(5)
(base offense level of 36 under the Drug Quantity Table), 2D1.1(b)(1) (2-point enhancement for
possession of a dangerous weapon), 2D1.1(b)(12) (2-point enhancement for maintaining a
premises for the purpose of manufacturing or distributing a controlled substance), and 3E1.1
(3-point reduction for acceptance of responsibility). Regardless, Defendant was not sentenced to
the guideline imprisonment range of 235 to 293 months, but instead was sentenced to 120 months
of imprisonment, consistent with the Fed. R. Crim. P. 11(c)(1)(C) plea agreement. Based on the
foregoing, the Court concludes that Defendant plainly is not entitled to relief on his § 2255 motion.
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The United States Court of Appeals for the Tenth Circuit has not yet determined whether Johnson applies
retroactively on collateral review to the residual clause definition of a “crime of violence” in the U.S.S.G. That
question currently is pending before the United States Supreme Court in Beckles v. United States, No. 15-854. The
Court need not determine whether Johnson applies retroactively to the U.S.S.G., because Defendant’s sentence was
not enhanced under the U.S.S.G. for a crime of violence.
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Therefore, Defendant’s § 2255 motion will be dismissed with prejudice.
Furthermore, the Court determines, under rule 11(a) of the Rules Governing Section 2255
Proceedings for the United States District Courts, that Defendant has failed to make a substantial
showing that he has been denied a constitutional right as required by 28 U.S.C. § 2253(c)(2).
Accordingly, the Court will deny a certificate of appealability.
IT IS THEREFORE ORDERED that Defendant’s Pro Se Motion To Vacate, Set Aside or
Correct Sentence Pursuant to 28 U.S.C. § 2255 [CV Doc. 1; CR Doc. 56] is DISMISSED with
prejudice; a certificate of appealability is DENIED; and judgment will be entered.
_______________________________________
UNITED STATES DISTRICT COURT JUDGE
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