Severiano-Borja v. United States of America
REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen. Objections to R&R due by 2/13/2017. 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).) (KBM)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
CIV 16-0418 KG/KBM
CR 14-2133 KG
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Defendant’s pro se Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence (CIV Doc. 1, CR Doc. 83), filed May
9, 2016, and the Government’s Response in Opposition (CIV Doc. 3, CR Doc. 91), filed
August 4, 2016. The Federal Public Defender was reappointed to represent Defendant
pursuant to Administrative Order 16-mc-04-19, CR Doc. 85, “to determine whether or
not an individual defendant may qualify to seek resentencing, and to present any
motions or applications for resentencing in accordance with Johnson v. U.S., 576 U.S.
___, 135 S. Ct 2551 (June 26, 2015).” The assigned Assistant Federal Public Defender
evidently chose not to reply, in either this civil or the criminal case, to the Response of
the United States in opposition to the relief sought in the pro se § 2255 Motion. Having
liberally construed the Motion, the Court agrees with the Government that the Motion
should be denied.
Defendant pled guilty to Count One (conspiracy to distribute marijuana) and
Count Five (illegal reentry after deportation) of the Indictment without any plea
agreement. CR Docs. 31, 40. The Honorable Kenneth J. Gonzales sentenced him to 57
months imprisonment on both counts with those terms to run concurrently. CR Doc. 77.
In his pro se § 2255 Motion, Defendant relies on the Johnson decision as his
basis for relief. In Johnson, the United States Supreme Court determined that the
Armed Career Criminal Act (“ACCA”) residual clause for defining a violent felony, 18
U.S.C. § 924(e), was unconstitutionally vague. Johnson, 135 S. Ct. at 2557. Thus, an
enhancement of a sentence using that residual clause was ruled invalid.
The Supreme Court subsequently held that Johnson applies retroactively to
cases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). Moreover,
the Tenth Circuit has expanded the Johnson rationale beyond the ACCA to hold
unconstitutional other indistinguishable clauses used to define violent felonies, including
such clauses found within the advisory federal sentencing guidelines and other statutory
provisions. See United States v. Madrid, 805 F.3d 1204, 1211 (2015) (career offender
guideline § 4B1.1); Golicov v. Lynch, 2016 WL 4988012 (10th Cir. Sept. 19, 2016) (18
U.S.C. §16(b) and, by extension, 8 U.S.C. § 1101(a)(43)(F)).1
Here, however, no residual clause was employed to enhance Defendant
Severiano-Borja’s sentence. Instead, the prior “aggravated felony” convictions used to
enhance Severiano-Borja’s sentence are drug trafficking crimes which are expressly
identified as aggravated felonies under 8 U.S.C. § 1101(43)(C). Thus, there was no
need to resort to the residual clause to see if the convictions otherwise qualified as
The Tenth Circuit in Golicov held that “18 U.S.C. § 16(b) is not meaningfully distinguishable from the
ACCA's residual clause and that, as a result, § 16(b), and by extension 8 U.S.C. § 1101(a)(43)(F), must
be deemed unconstitutionally vague in light of Johnson.” Id. at *5.
crimes of violence under 8 U.S.C. § 1101(43)(F). Similarly, Defendant Severiano-Borja
was sentenced as a career offender pursuant to USSG § 4B1.1 based solely on
controlled substance trafficking offenses and not based on any crimes of violence.
Again, no residual clause was used to enhance his sentencing guideline range.
IT IS HEREBY RECOMMENDED that Defendant’s pro se Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (CIV Doc. 1, CR Doc. 83) be
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.
UNITED STATES CHIEF MAGISTRATE JUDGE
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