Grimaldo v. USA
Filing
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ORDER dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Max O. Cogburn, Jr on 3/17/17. (Pro se litigant served by US Mail.)(tob)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-505-MOC
(3:12-cr-380-MOC-1)
CRISPIN GRIMALDO,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
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Respondent.
)
____________________________________)
ORDER
THIS MATTER is before the Court upon Petitioner Crispin Grimaldo’s pro se Motion to
Vacate, Set Aside or Correct Sentence, 28 U.S.C. § 2255 (Doc. No. 1). Also before the Court is the
Government’s Motion to Dismiss the Motion to Vacate. (Doc. No. 4.)
I. BACKGROUND
Grimaldo was indicted on December 11, 2012, and charged with conspiracy to possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846; three counts of possession with intent to
distribute cocaine, in violation of 21 U.S.C. § 841(a); two counts of dealing in firearms without a
license, in violation of 18 U.S.C. §§ 922(a)(1)(A) and 924(a)(1)(D); and two counts of using a
firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c). Mot.
to Cont., Doc. No. 33.1 On June 26, 2013, Grimaldo entered into a plea agreement with the
Government, agreeing to plead guilty to the drug-trafficking conspiracy offense, one count of
dealing in firearms and a license, and one count of using a firearm during and in relation to a drugtrafficking offense. Plea Agreement, Doc. No. 37. The parties agreed that Grimaldo was
responsible for at least 100 grams but less than 200 grams of cocaine and between 3 and 7 firearms.
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Unless otherwise indicated, all document and docket references are from the underlying criminal action, United States
v. Grimaldo, 3:12-cr-380-MOC-1 (W.D.N.C.).
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Id. at ¶ 7(c) and (d). Grimaldo agreed to waive his right to challenge his conviction or sentence in a
28 U.S.C. § 2255 motion, except on the bases of ineffective assistance of counsel and prosecutorial
misconduct. Id. at ¶¶ 18, 19.
On July 2, 2013, this Court, Magistrate Judge David S. Cayer presiding, conducted a plea
colloquy in accordance with Federal Rule of Criminal Procedure 11. Entry and Acceptance of
Guilty Plea, Doc. No. 38. During the colloquy, Petitioner affirmed that he understood the charges
to which he was pleading guilty and the maximum penalties he faced. Id. at ¶¶ 8 9. Petitioner also
affirmed he was, in fact, guilty of the offenses to which he was pleading guilty, id. at ¶ 23, and he
understood that if his sentence was more severe than he expected, he would still be bound by his
plea and have no right to withdraw it, id. at ¶ 16. Additionally, Petitioner affirmed that he
understood that his right to challenge his conviction and/or sentence in a post-conviction proceeding
had been “expressly waived” in his plea agreement. Id. at ¶ 27. At the conclusion of the hearing,
the Court accepted Petitioner's guilty plea as knowingly and voluntarily entered. Id. at 4.
In Grimaldo’s presentence report (“PSR”), the probation officer calculated a total offense
level of 17 based on the characteristics of Grimaldo’s offense and his acceptance of responsibility.
PSR ¶¶ 48, 55, 56, 57, Doc. No. 48. This offense level did not include any increase based on a prior
conviction of a crime of violence. See id. at ¶ 48. Based on a total offense level of 17 and a
criminal-history category of II, the probation officer calculated an advisory Sentencing Guidelines
range of imprisonment of between 27 and 33 months for the drug-trafficking-conspiracy and
selling-firearms-without-a-license offenses. Id. at ¶ 83. Grimaldo faced a mandatory consecutive
sentence of 60 months in prison for the § 924(c) firearm offense. Id. at ¶¶ 81, 82.
Grimaldo did not object to the PSR. Id. at 18. The Court adopted the PSR and sentenced
Grimaldo to a low-end term of 27 months in prison for the drug-trafficking-conspiracy and sellingfirearms-without-a-license offenses and a consecutive 60-month term of imprisonment for the §
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924(c) firearm offense, for a total of 87 months in prison. Judgment, Doc. 52.
Grimaldo did not file a direct appeal. On or about June 21, 2016, he filed the instant Motion
to Vacate, asserting that he is entitled to relief under Johnson v. United States, 135 S. Ct. 2551
(2015). (Mot. to Vacate, Civ. Case No. 3:16-cv-505-MOC, Doc. No. 1.) The Government filed a
Motion to Dismiss, arguing that Grimaldo explicitly waived his right to challenge his sentence in a
§ 2255 post-conviction proceeding except on the grounds of ineffective assistance of counsel and
prosecutorial misconduct and that this action does not allege either ground. The Government also
argues that Grimaldo’s Johnson claim is procedurally defaulted because he failed to raise the
substance of the claim at sentencing or in a direct appeal. Finally, the Government contends that
Grimaldo cannot state a claim under Johnson. (3:16-cv-505-MOC, Doc. No. 4.)
In accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the Court notified
Grimaldo that he had a right to respond to the Government’s Motion and warned that failure to do
so could result in dismissal of his Motion to Vacate without further notice. (3:16-cv-505-MOC,
Doc. No. 5.) Grimaldo responded by letter. (3:16-cv-505-MOC, Doc. No. 6.)
II. STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to
promptly examine motions to vacate, along with “any attached exhibits and the record of prior
proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims
set forth therein. After examining the record in this matter, the Court finds that the arguments
presented can be resolved without an evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).
III. DISCUSSION
The Court agrees that Grimaldo’s Motion to Vacate fails to state a claim for relief under
Johnson. For the sake of judicial economy, the Court, therefore, will not also address the waiver
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and procedural default defenses raised by the Government.
In Johnson v. United States, the Supreme Court held that the residual clause of the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague. 135 S. Ct. at
2558. The Court has made the holding in Johnson retroactive on collateral review. See Welch v.
United States, 136 S. Ct. 1257 (2016).
The ACCA provides for a mandatory minimum sentence of 15 years in prison for a
defendant convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g), if the defendant
has at least three prior convictions for serious drug offenses or violent felonies. See § 924(e)(1).
“Violent felony” is defined in the ACCA as “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 use of
explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to
another.” Id. § 924(e)(2)(B) (emphasis added).
The italicized closing words of § 924(e)(2)(B) constitute the ACCA’s residual clause, which
the Johnson Court held is void for vagueness. Johnson, 135 S. Ct. at 2556, 2558. The Court left
intact the remainder of the ACCA’s “violent felony” definition, including the four enumerated
offenses and the “force clause.” Id. at 2563.
Grimaldo was not convicted of being a felon in possession of a firearm. Thus, his sentence
was not enhanced under the ACCA. Grimaldo’s sentence was enhanced because he was convicted
of using a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c).
To sustain a conviction under § 924(c), the government must prove that the defendant (1)
discharged or brandished a firearm and (2) did so during and in furtherance of a crime of violence
or drug trafficking crime. § 924(c)(1)(A). Although § 924(c), like the ACCA, has both a “force”
and a “residual” clause, they apply only when a defendant is convicted of using a firearm in
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furtherance of a “crime of violence.” See § 924(c)(3). Neither applies when a defendant, like
Grimaldo, is convicted of using a firearm in furtherance of a “drug trafficking crime,” see §
924(c)(2). Accordingly, to the extent Johnson applies to the residual clause of § 924(c), and is
retroactive on collateral review with respect to convictions under that statute, Grimaldo’s § 924(c)
conviction and sentence are unaffected.
Grimaldo has failed to set forth any grounds upon which relief may be granted. As such, his
§ 2255 Motion must be dismissed.
IT IS, THEREFORE, ORDERED that:
1.
The Motion to Vacate, Set Aside or Correct Sentence (Doc. No. 1) is DISMISSED;
2.
The Government’s Motion to Dismiss (Doc. No. 4) is GRANTED; and
3.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases, the Court
declines to issue a certificate of appealability as Petitioner has not made a substantial
showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner
must demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484
(2000) (holding that when relief is denied on procedural grounds, a petitioner must
establish both that the correctness of the dispositive procedural ruling is debatable,
and that the petition states a debatably valid claim of the denial of a constitutional
right).
Signed: March 17, 2017
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