Saenz-Amaya v. United States of America
Filing
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MEMORANDUM OPINION AND ORDER by District Judge Martha Vazquez DISMISSING 1 Motion to Vacate/Set Aside/Correct Sentence (2255 under Johnson v. USA) . IT IS ORDERED that the Motion Seeking Sentence Reduction Under Johnson Post- Conviction Motion Pursuant to 28 U.S.C. § 2255(f)(1) filed July 1, 2016 by Movant Sergio Saenz-Amaya (CV Doc. 1 ; CR Doc. 94) is DISMISSED under rule 4(b) of the Rules Governing Section 2255 Proceedings, and a Certificate of Appealability is DENIED under rule 11(a). (gr) Modified text on 1/23/2018 (gr).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SERGIO SAENZ-AMAYA
Movant,
vs.
No. CV 16-00768 MV/CG
No. CR 12-02823 MV
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court under rule 4 of the Rules Governing Section 2255
Proceedings on the Motion Seeking Sentence Reduction Under Johnson Post-Conviction Motion
Pursuant to 28 U.S.C. § 2255(f)(1)filed July 1, 2016 by Movant Sergio Saenz-Amaya (CV Doc.
1; CR Doc. 94) (the “Motion”). Movant Saenz-Amaya seeks relief based on the U.S. Supreme
Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Court determines that
Saenz-Amaya is clearly ineligible for relief under Johnson and will dismiss the Motion.
Saenz-Amaya was charged with possession with intent to distribute methamphetamine
contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), possession with intent to distribute cocaine in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), possession with intent to distribute heroin in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), possession of a firearm during and in relation
to and in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c), and illegal reentry of
a removed alien. (CR Doc. 24). Saenz-Amaya pled guilty under the terms of a Plea Agreement
to possession with intent to distribute methamphetamine in violation of §§ 841(a)(1) and
(b)(1)(C) and 18 U.S.C. § 2, as well as the charge of possession of a firearm during and in
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relation to and in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c). (CR Doc. 70).
Saenz-Amaya was sentenced to 120 months of imprisonment followed by three years of
unsupervised release. (CR Doc. 76).
In his Motion, Saenz-Amaya contends that, based on Johnson, he should not have
received an enhanced sentence under 18 U.S.C. § 924(c).
Saenz-Amaya argues that his
conviction for possession with intent to distribute methamphetamine and possession of a firearm
during and in relation to and in furtherance of a drug trafficking crime no longer constitute
crimes of violence under the residual clause of § 924(c). (CV Doc. 1; CR Doc. 94).
Saenz-Amaya seeks collateral review of his sentence 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.”
28 U.S.C. § 2255(a). Because he seeks § 2255 relief more than one year after his sentencing,
Saenz-Amaya seeks collateral review in reliance on a right newly recognized by the Supreme
Court in Johnson and made retroactively applicable to cases on collateral review. 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 2562-63. Under the ACCA, a defendant convicted of being a felon in possession of
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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 2555-63.
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
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).
Saenz-Amaya’s sentence was not enhanced under § 924(e)(2)(B) of the ACCA. Instead,
Saenz-Amaya 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)(3)(B) 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
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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. See United
States v. Taylor, 814 F.3d 340, 375-79 (4th Cir. 2016) (declining to find § 924(c) void for
vagueness); 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). The
question of whether the Johnson holding applies to the residual clause of § 924(c)(3)(B) is
presently pending before the Tenth Circuit in United States v. Hopper, 10th Cir. No. 15-2190.
The issue of whether the reasoning of Johnson should extend to the residual clause of §
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). Even if Johnson was
extended to § 924(c), the residual clause definition of “crime of violence” is not applicable to
Saenz-Amaya’s drug conviction.
Saenz-Amaya's underlying conviction, upon which his §
924(c) enhancement was based, is not a “crime of violence” as set forth in § 924(c)(3)(B).1
Instead, Saenz-Amaya was convicted of possession with intent to distribute methamphetamine
contrary to 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). This conviction qualifies as a “drug trafficking
crime” as listed in § 924(c)(2), and the § 924(c)(3)(B) “crime of violence” analysis has no
bearing on Saenz-Amaya’s sentence.
If Johnson impacts § 924(c) at all it would only serve to invalidate the residual clause in
the crime of violence portion § 924(c)(3)(B). The drug trafficking portion of § 924(c)(2) does
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There is also a question as to timeliness of Saenz-Amaya’s Motion under the prisoner mailbox rule. However,
because the Court concludes that Saenz-Amaya would not be eligible for resentencing, the Court does not reach the
issue.
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not have a residual clause, and states with particularity which charges serve as underlying crimes
for a § 924(c) conviction. The predicate crime for purposes of § 924(c)(2) includes SaenzAmaya’s offense under 21 U.S.C. §§ 841 and 846. Therefore, the Supreme Court's holding in
Johnson has no effect on conviction under § 924(c) based on a drug trafficking crime. Because
Saenz-Amaya's § 924(c) conviction rests on a drug trafficking crime, he is not entitled to relief
under Johnson.
Under 28 U.S.C. § 2253(c)(1) and (3), the Court determines that Saenz-Amaya has not
made a substantial showing of denial of a constitutional right. The Court will, therefore, deny a
certificate of appealability. See rule 11(a) of the Rules Governing Section 2255 Proceedings.
IT IS ORDERED that the Motion Seeking Sentence Reduction Under Johnson PostConviction Motion Pursuant to 28 U.S.C. § 2255(f)(1) filed July 1, 2016 by Movant Sergio
Saenz-Amaya (CV Doc. 1; CR Doc. 94) is DISMISSED under rule 4(b) of the Rules Governing
Section 2255 Proceedings, and a Certificate of Appealability is DENIED under rule 11(a).
_______________________________
MARTHA VÁZQUEZ
UNITED STATES DISTRICT JUDGE
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