Flores v. United States of America

Filing 6

OPINION & ORDER: In light of the Supreme Court's unambiguous resolution of the only issue raised by this 18 U.S.C. § 2255 motion, Flores's petition to vacate his sentence is DENIED. Because this motion makes no substantial showing of a denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(2). In addition, the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith and therefore in forma pauperis status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. (Signed by Judge Sidney H. Stein on 04/04/2017) (ama) Modified on 4/4/2017 (ama).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
UNITED STATES OF AMERICA,

12-Cr-874 (SHS)
15-Cv-7410 (SHS)

-againstMARIO FLORES,

OPINION & ORDER
Defendant.

SIDNEY H. STEIN, U.S. District Judge.
Mario Flores, currently incarcerated at Federal Correctional
Institution, Allenwood, moves to vacate his sentence pursuant to 28
U.S.C. § 2255 in light of the U.S. Supreme Court's decision in Johnson v.
United States, 135 S. Ct. 2551 (2015). Flores' s sentence was based, in
part, on language in the United States Sentencing Guidelines that is
identical to the language in the Armed Career Criminal Act (" ACCA")
that was invalidated as unconstitutionally vague by Johnson. Because
the Supreme Court held in Beckles v. United States, 137 S. Ct. 886 (2017),
that, unlike ACCA, the Sentencing Guidelines are not subject to
vagueness challenges, defendant's motion is denied.
I.

BACKGROUND

On February 1, 2013, Mario Flores pied guilty to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(l). At Flores's
sentencing five months later, the Court calculated Flores' s base offense
level after factoring in his two prior felony convictions for "crime[ s] of
violence" pursuant to U.S.S.G. § 2K2.l(a) (2012). One of these prior
convictions - a conviction for burglary in the third degree in violation
of N.Y. Penal Law§ 140.20 - qualified as a "crime of violence" pursuant
to the "residual clause" of section 4Bl.2(a)(2) of the Sentencing
Guidelines, which defines a "crime of violence" as including any
burglary offense that "involves conduct that presents a serious
potential risk of physical injury to another."

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Flores argued at sentencing that a violation of N.Y. Penal Law
§ 140.20 was not a "crime of violence" and that the residual clause of
U.S.S.G. § 4B1.2(a)(2) was unconstitutionally vague (No. 12-cr-874, ECF
No. 16at10-15), but the Court rejected those arguments. The Court
applied the residual clause of U.S.S.G. § 4B1.2(a)(2) and relied on United
States v. Brown, 514 F.3d 256, 269 (2d Cir. 2008) and United States v. Boyd,
398 F. App'x 649, 652 (2d Cir. 2010) to determine that burglary in the
third degree in New York was indeed a "crime of violence" within the
meaning of the Guidelines. (See No. 12-cr-874, ECF No. 19, Sentencing
Tr. 4:20-7:1.)
Accordingly, the Court concluded that Flores' s offense level was 24
- four levels higher than it would have been had he only had one prior
conviction for a "crime of violence." Compare U.S.S.G. § 2K2.l(a)(2) with
U.S.S.G. § 2K2.l(a)(4)(A). Although Flores's Guidelines range was 84 to
105 months, the Court varied downward pursuant to 18 U.S.C.
§ 3553(a) based on Flores's "cognitive deficit" and imposed a belowGuidelines sentence of 60 months imprisonment and 3 years supervised
release. (No. 12-cr-874, ECF No. 19, Sentencing Tr. at 17:16-25.)
Judgment was entered on August 1, 2013. (No. 12-cr-874, ECF No. 17.)
Flores filed a timely appeal from the resulting judgment, arguing
that his burglary conviction was not a "crime of violence." On June 17,
2014, the Second Circuit rejected his argument and affirmed the Court's
judgment. United States v. Flores, 569 F. App'x 33 (2d Cir. 2014). Flores
then filed a petition for certiorari, which was denied by the Supreme
Court on January 12, 2015. Flores v. United States, 135 S. Ct. 999 (2015).
Flores' s motion for rehearing before the Supreme Court was similarly
denied on March 2, 2015. Flores v. United States, 135 S. Ct. 1526 (2015).
On September 18, 2015, Flores filed a timely 28 U.S.C. § 2255
motion to vacate his sentence on the ground that the residual clause of
U.S.S.G. § 4B1.2(a) is unconstitutionally vague and that his conviction
for burglary in the third degree could not have been a "crime of
violence." This time, Flores relied on the Supreme Court's decision in
Johnson v. United States, 135 S. Ct. 2551 (2015), which held that the

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residual clause of ACCA was unconstitutionally vague; Johnson did not
deal with the residual clause of U.S.S.G. § 4Bl.2(a).

II.

DISCUSSION

In Johnson, the Supreme Court held that the residual clause of
ACCA, which defined a "violent felony" as any crime that "involves
conduct that presents a serious potential risk of physical injury to
another," violated the Fifth Amendment's Due Process Clause. 135 S.
Ct. at 2563; see also 18 U.S.C. § 924(e)(2)(B). The residual clause in
section 4Bl.2(a)(2) of the 2012 Sentencing Guidelines defined "crime of
violence" using identical language. 1
While Flores' s section 2255 motion was pending before this Court,
the Supreme Court issued an opinion that directly addressed the
question of whether Johnson's holding applies to challenges to the
identically worded residual clause of U.S.S.G. § 4B.2(a)(2). In Beckles v.
United States, 137 S. Ct. 886, 894-95 (2017), the Supreme Court held that,
because the advisory Sentencing Guidelines "merely guide the district
courts' discretion," they "do not implicate the twin concerns
underlying vagueness doctrine - providing notice and preventing
arbitrary enforcement" - and are therefore "not subject to a vagueness
challenge under the Due Process Clause." Accordingly, Flores's offense
level was not determined on the basis of an unconstitutionally vague
residual clause.
Although the government had conceded in this action, prior to the
Beckles decision being issued, that U.S.S.G. § 4B1.2(a)(2) was void for
vagueness (No. 12-cr-874, ECF No. 25 at 2), that concession will not be
enforced by this Court because it squarely conflicts with a definitive
determination of the Supreme Court. See United States v. Thompson,

The U.S. Sentencing Commission has since removed the residual clause from the
definition of "crime of violence" in the Sentencing Guidelines, effective August 1,
2016. See U.S. Sentencing Comm'n, Amendments to the Sentencing Guidelines 1-2
(Jan. 21, 2016).

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_ F.3d _,No. 13-1822, 2017 WL 1076336, at *2 & n.5 (1st Cir. Mar.
22, 2017) (per curiam) ("ignor[ing] the government's concession [on the
applicability of Johnson to the Sentencing Guidelines] and follow[ing]
the Supreme Court's clear precedent [in Beckles]" (internal quotation
marks, alterations, and citation omitted)); see also United States v.
Vasquez, 85 F.3d 59, 60 (2d Cir. 1996) (a court is not bound by the
parties' concessions).
In light of the Supreme Court's unambiguous resolution of the only
issue raised by this 18 U.S.C. § 2255 motion, Flores's petition to vacate
his sentence is DENIED. 2
Because this motion makes no substantial showing of a denial of a
constitutional right, a certificate of appealability will not issue. See 28
U.S.C. § 2253(2). In addition, the Court certifies, pursuant to 28 U.S.C. §
1915(a)(3), that any appeal from this order would not be taken in good
faith and therefore in forma pauperis status is denied for the purpose of
an appeal. Cf Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

Dated: New York, New York
April 4, 2017

Because the Court finds that Beckles forecloses a finding that U.S.S.G. § 4Bl.2(a)(2) is
unconstitutionally vague, the Court does not address the remaining arguments raised
in the government's brief in opposition to Flores' s motion.

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