Angulo-Aguirre v. United States of America
Filing
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ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C. § 2255: The motion is denied. Because the Petitioner has not made a substantial showing of denial of a constitutional right, a certification of appealability will not issue. United States v. P erez, 129 F.3d 255,260 (2d -Cir.1997). The Court further finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from an order denying Angulo-Aguirre's motion would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 (1962). This constitutes the decision and order of the Court. (Signed by Judge Colleen McMahon on 12/10/2019) Sent by Chambers via ECF (ks)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
PLUTARCO ANGULO-AGUIRRE,
Petitioner,
-againstUNITED STATES OF AMERICA,
Respondent.
----------------------'x
ORDER DENYING MOTION FILED PURSUANT TO 28 U.S.C. § 2255
McMahon, C.J.:
On September 13 and November 14, 2006, Angulo-Aguirre, along with others, robbed
and kidnapped various truck drivers at gun point who were transporting valuable merchandise.
(PSR at 8-12). On May 23, 2008, Angulo-Aguirre pleaded guilty pursuant to a plea agreement to
five counts of an eight-count superseding indictment: Count One- conspiracy to commit
kidnapping in violation of 18 U.S.C. § 1201(c); Count Two- kidnapping in violation of 18 U.S.C.
§ 1201(a)(l) & (2); Count Four- conspiracy to commit robbery in violation of 18 U.S.C. §
1951 (a); Count Five- robbery in violation of 18 U.S.C. § 1951 (a) & (2); and Count Sevenbrandishing a firearm in connection with a crime of violence in violation of 18 U.S.C. §
924(c)(l)(A)(ii) & (2), specifically, the crimes of violence charged in Counts One, Two, Four,
and Five. (ECF Nos. 29, 170 (Judgment)).
On May 12, 2009, the Court sentenced Angulo-Aguirre to 294 months imprisonment
(concurrent terms of 210 months imprisonment on Counts One, Two, Four, and Five, and 84
months on Count Seven, to run consecutively to the other sentences imposed). (ECF No. 170).
Angulo-Aguirre filed an appeal in the Second Circuit, but later withdrew that appeal. (ECF No.
188).
He is currently in a federal prison serving his sentence. His projected release date is May
2027.
On June 15, 2016, The Office of the Federal Public Defender filed a petition on behalf of
Angulo-Aguirre, pursuant to the "Johnson" standing orders issued by the Court. See In re:
Motion for Sentencing Reductions Under 28 U.S.C. § 2255 In Light of Johnson v. United States,
15 Misc. 373 (LAP) (S.D.N.Y. Nov. 18, 2015), and 16 Misc. 217 (CM) (S.D.N.Y. June 8, 2016).
On the same day, the Court held the motion in abeyance pending further decisions by the Second
Circuit and ordered that the motion was to be "supplemented on a future date by a brief that more
fully sets forth the basis of the requested relief." (ECF No. 218). On April 27, 2017, AnguloAguirre filed a supplemental pro se memorandum arguing that "none of his underlying
convictions can be used for the purposes of a§ 924(c) conviction" (the crime he was convicted
of in Count Seven), because the "residual clause" of§ 924(c) is impermissibly vague based on
the rationale applied in Johnson v. United States, 135 S. Ct. 2551 (2015), and its progeny. (ECF
No. 230 at 2-6). Angulo-Aguirre retained counsel and on February 19, 2019, counsel filed an
additional memorandum in support of the motion. On June 24, 2019, the Supreme Court decided
United States v. Davis, holding that§ 924(c)'s residual, or risk-of-force, clause defining a "crime
of violence" was void for vagueness and thus unconstitutional. See United States v. Davis, 139 S.
Ct. 2319, 2336 (2019). On July 1, 2019, this Court ordered the Government to file a response to
the motion, in light of Davis. (ECF No. 252). The Government responded and counsel for
petitioner replied.
Angulo-Aguirre§ 924(c) Conviction Properly Rests on a "Crime of Violence"
The Government's procedural attacks on the instant petition aside, Angulo-Aguirre's
Johnson/ Davis claim is without merit.
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A defendant is guilty of violating § 924(c) if he used or carried a firearm during and in
relation to, or possessed a firearm in furtherance of, a "crime of violence" or "drug trafficking
crime." 18 U.S.C. § 924(c)(l)(A). A "crime of violence" is defined as a felony that (1) "has as an
element the use, attempted use, or threatened use of physical force against the person or property
of another" (the force clause) or (2) "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" (the risk-of-force clause). Id. § 924(c)(3)(A), (B).
In Davis, the Supreme Court held that§ 924(c)(3)(B)'s risk-of-force clause is
unconstitutionally vague in light of Sessions. v. Dimaya, 138 S. Ct. 1204 (2018), and Johnson v.
United States, 135 S. Ct. 2551 (2015). Davis, 139 S. Ct. at 2325-27, 2336. In so ruling, Davis
rejected the contention that§ 924(c)(3)(B)'s vagueness concerns could be avoided by applying
the statute to a defendant's case-specific conduct with a jury making the requisite findings about
the nature of the predicate offense and the attendant risk of physical force being used in its
commission. Id. at 2327-33. Rather, Davis held that the categorical approach applied in which
courts "had to disregard how the defendant actually committed his crime" and "imagine the
idealized 'ordinary case' of the defendant's crime" is unconstitutional. Id. at 2326-27, 2336
(internal citation omitted).
However, there is no suggestion in Davis, Dimaya, or Johnson that the language of the
force clause appearing in the statutes under consideration-§ 924(c), Section 16, or the ACCA,
respectively-was suspect. Nor could such a suggestion be made about§ 924(c)'s force clause,
which the Second Circuit recently reconfirmed covers at least one of the predicate crimes in this
case: Hobbs Act robbery. See United States v. Hill, 890 F.3d 51, 56-60 (2d Cir. 2018). As the
Hill Court explained, using the so-called "categorical" approach, 18 U.S.C. § 195 l(b)(l)'s
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requirement that the defendant commit robbery by means of "actual or threatened force,"
"violence," or "fear of injury" qualifies the offense as one which has "as an element the use,
attempted use, or threatened use of physical force against the person or property of another." 18
U.S.C. § 924(c)(3)(A); see Hill, 890 F.3d at 57-60.
In reaching this conclusion, the Second Circuit joined every other Court of Appeals to
have considered the question. See, e.g., United States v. Garcia-Ortiz, 904 F.3d 102, 106-09 (1st
Cir. 2018); United States v. Robinson, 844 F.3d 137, 141-44 (3d Cir. 2016); United States v.
Buck, 847 F.3d 267, 274-75 (5th Cir. 2017); United States v. Gooch, 850 F.3d 285,292 (6th Cir.
2017); United States v. Anglin, 846 F.3d 954, 964-65 (7th Cir. 2017), vacated on other grounds
sub. nom., Anglin v. United States, 138 S. Ct. 126 (2017) (mem.); United States v. House, 825
F.3d 381, 387 (8th Cir. 2016); United States v. Howard, 650 F. App'x 466, 467-68 (9th Cir.
2016); United States v. Melgar-Cabrera, 892 F.3d 1053, 1064-66 (10th Cir. 2018); In re Fleur,
824 F.3d 1337, 1340-41 (11th Cir. 2016). And, on January 7, 2019, the Supreme Court denied
certiorari in Hill. 139 S. Ct. 844 (2019).
Based on the foregoing, Angulo-Aguirre's Motion fails on the merits. Hill expressly
rejected the same challenge that defendant makes here: "We agree with all of the circuits to have
addressed the issue and hold 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."' Hill, 890 F .3d at 60
(quoting§ 924(c)(3)(A)). The Supreme Court's decision in Davis did nothing to undermine Hill.
Accordingly, Hobbs Act robbery is a crime of violence under§ 924(c)(3)(A) and properly
supports Angulo-Aguirre's§ 924(c) conviction.
The motion is denied.
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Because the Petitioner has not made a substantial showing of denial of a constitutional
right, a certification of appealability will not issue. United States v. Perez, 129 F.3d 255,260 (2d
-Cir.1997). The Court further finds, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from an
order denying Angulo-Aguirre's motion would not be taken in good faith. See Coppedge v.
United States, 369 U.S. 438, 82 (1962).
This constitutes the decision and order of the Court.
Dated: December 10, 2019
Chief Judge
BY ECF TO ALL PARTIES
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