Gandia-Maysonet v. USA
Filing
14
OPINION AND ORDER: The Motion to Lift Stay at Docket No. 12 is GRANTED. Defendant's Motion to Vacate under 28 U.S.C. 2255 pursuant to Johnson vs. USA at Docket No. 1 is DENIED. Judgment of dismissal WITH PREJUDICE shall be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 9/22/2020. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
DANIEL GANDIA-MAYSONET,
Plaintiff,
CIVIL NO. 16-cv-2151 (RAM)
v.
UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
Raúl M. Arias-Marxuach, United States District Judge
This
matter
comes
before
the
Court
on
Daniel
Gandía-
Maysonet’s: (a) Motion to Vacate under 28 U.S.C. 2255 pursuant to
Johnson vs. USA (“Petition”) (Docket No. 1); (b) Supplemental Brief
in
Support
of
Petitioner’s
Section
2255
Motion
(“Supplemental
Brief”) (Docket No. 8); and (c) Motion to Lift Stay (Docket No.
12).
The Motion to Lift Stay is GRANTED.
The Petition is DENIED
because it is barred by United States Court of Appeals for the
First Circuit precedent as explained below.
I.
BACKGROUND
Taken from a First Circuit Opinion which overturned Daniel
Gandía-Maysonet’s (subsequently “Petitioner,” “Gandía-Maysonet” or
“Gandía”)
original
guilty
plea,
the
factual
background
follows:
On March 20, 1995, in Vega Baja, in the Commonwealth
of Puerto Rico, Ivan Pizarro-Torres invited Gandia
to take a drive and then asked him to rob Victor
Colon-Ortiz, a lottery ticket seller. Gandia said
is
as
Civil No. 96-2151 (RAM)
2
he would not do the robbery alone, so Ivan Pizarro
enlisted his cousin, Samuel Pizarro, to join in the
scheme. Ivan Pizarro then drove Gandia and Samuel
Pizarro to a point near Colon's home and departed
with his vehicle, leaving Gandia and Samuel Pizarro
with Ivan's pistol. Gandia and Samuel Pizarro
circled the house, spotted Colon in his carport,
and approached him.
Samuel Pizarro announced that this was a hold-up;
Colon took out a knife and moved toward Samuel, and
Samuel then shot Colon five times, killing him.
Colon's wife was also shot and suffered serious
injury but survived. Samuel Pizarro proceeded to
drive Colon's car through a closed gate, and Gandia
then joined him. After fleeing with Colon's car,
the pair retrieved money from the trunk of the car
and shared it with Ivan Pizarro. Some months later,
Gandia and another individual shot and killed
Samuel Pizarro.
See U.S. v. Gandía Maysonet, 227 F.3d 1, 2 (1st Cir. 2000).
On March 28, 2001, Petitioner pled guilty and was convicted
in Criminal Case No. 96-304 for aiding and abetting a carjacking
resulting in death in violation of 18 U.S.C. § 2119(3). See Case
No. 96-cr-304-RAM-2 at Docket No. 138. He also pled guilty and was
convicted for violating 18 U.S.C. § 924(c) by aiding and abetting
in the use of a firearm during and in relation to a “crime of
violence”. Id.
The late Honorable Salvador E. Casellas sentenced Mr. GandíaMaysonet to 300 months of imprisonment as to Count 1 of the
Indictment (the Section 2119(3) and Section 2 carjacking charge)
and 60 months as to Count 2 (the Section 924(c)(1)(3) and Section
2 unlawful use of a firearm charge), to be served consecutively to
each other. See Case No. 96-cr-304-RAM-2 at Docket No. 139.
Civil No. 96-2151 (RAM)
3
On June 21, 2016, Mr. Gandía-Maysonet filed the Petition
giving rise to this case. (Docket No 1).
In a nutshell, and as
stated in the Supplemental Brief by the Federal Public Defender,
the Petition argues that Mr. Gandía-Maysonet’s conviction under
Section 924(c) is invalid because his carjacking and aiding and
abetting carjacking convictions no longer qualify as predicate
“crimes of violence” to sustain the Section 924(c) conviction.
(Docket Nos. 1 and 8).
On October 27, 2017, Judge Casellas stayed proceedings pending
the Supreme Court of the United States’ resolution of Sessions v.
Dimaya, 137 S.Ct. 31 (2017). (Docket Nos. 10 and 11).
On September
3, 2020, the case was transferred to the undersigned’s docket in
the wake of Petitioner’s Motion to Lift Stay filed the previous
day. (Docket No. 13)
As correctly conceded by the Public Defender, with the caveat
that they seek to preserve the arguments in the Petition for
appellate
review,
First
Circuit
precedent
currently
precludes
Petitioner claims that Section 2119 carjacking and “aiding and
abetting” a carjacking are not “crimes of violence” for Section
924(c) purposes. (Docket No. 13).
II.
LEGAL STANDARD GOVERNING MOTIONS UNDER 28 U.S.C. § 2255
Under 28 U.S.C. § 2255, a prisoner in custody under a sentence
of a Federal Court may move the Court that imposed sentence to
vacate, set aside or correct it:
Civil No. 96-2151 (RAM)
4
[U]pon 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.
“A petitioner requesting post-conviction relief must show that his
sentence ‘reveal[s] fundamental defects which, if uncorrected, will
result in a complete miscarriage of justice.’” See Lebron Ortiz v.
United States, 2015 WL 2400746 (D.P.R. 2015) at * 2 (quoting David
v. United States, 134 F.3d 470, 474 (1st Cir. 1998)). Thus, the
petitioner bears the burden of establishing the defect. Id.
Likewise, “[w]hen a petition is brought under section 2255,
the petitioner bears the burden of establishing the need for an
evidentiary hearing.” U.S. v. McGill, 11 F.3d 223, 225 (1st Cir.
1993) (citations omitted).
To determine whether the petitioner
has met this burden, “the court must take many of petitioner’s
factual averments as true, but the court need not give weight to
conclusory
allegations,
self-interested
characterizations,
discredited inventions, or opprobrious epithets.” Id.
A hearing on such a petition is “generally not necessary when
a § 2255 motion (1) is inadequate on its face, or (2) although
facially adequate is conclusively refuted as to the alleged facts
by the files and records of the case.” Moran v. Hogan, 494 F.2d
1220, 1222 (1st Cir. 1974).
Put in another way, a Section 2255
motion “‘may be denied without a hearing as to those allegations
which, if accepted as true, entitle the movant to no relief, or
Civil No. 96-2151 (RAM)
5
which need not be accepted as true because they state conclusions
instead
of
facts,
contradict
the
record,
or
are
inherently
incredible.’” McGill, 11 F.3d at 226 (quoting Shraiar v. United
States, 736 F.2d 817, 818 (1st Cir.1984)) (internal quotation
omitted).
III. ANALYSIS
No hearing is necessary in the case at bar because the Petition
presents only legal issues that do not require resolving any factual
issues. See Miller v. United States, 564 F.2d 103, 106 (1st Cir.
1977) (“Where there are no disputed facts crucial to the outcome,
leaving only questions of law, [§] 2255 does not require a hearing;
the
motion
may
be
decided
[…] without oral
presentation”).
As
explained below, Petitioner contends that Section 2119 carjacking
is an “indivisible statute”. An indivisible statute contains a
“single,
indivisible
set
of
elements”
instead
of
containing
alternative elements, and “that criminalizes a broader swath of
conduct than the relevant generic offense.” Descamps v. United
States, 570 U.S. 254, 258 (2013). On the other hand, a statute is
“divisible” when “sets out one or more elements of the offense in
the alternative[,]” thereby “listing potential offense elements.”
Id. at 257, 260.
To determine whether an indivisible statute is a “crime of
violence,”
the
court
applies
a
“categorical
approach”
that
considers “the elements of the crime of conviction, not the facts
of how it was committed, and assess[es] whether violent force is
Civil No. 96-2151 (RAM)
6
an element of the crime.” United States v. Taylor, 848 F.3d 476,
491 (1st Cir. 2017) (emphasis added). For divisible statutes,
courts use a “modified categorical approach” which consists of
analyzing
a
limited
set
of
documents
“such
as
the
charging
documents, plea agreements, plea colloquies, jury instructions, and
verdict forms […] to determine which of the statute’s alternative
elements formed the basis of the prior conviction.” United States
v. Castro-Vazquez, 802 F.3d 28, 35 (1st Cir. 2015)
A. First Circuit Precedent provides that carjacking under Section
2119 is a predicate “crime of violence” under Section 924(c)’s
“force clause.”
The
Petition
and
the
Supplemental
Brief
contend
that
carjacking and aiding and abetting a carjacking are not “crimes of
violence” for purposes of Section 924(c) because they do not meet
the definition of “crime of violence” in Section 924(c)(3)(A).
In
jurisprudential parlance, Section 924(c)(3)(A) is known as the
“force clause”.
See United States v. Rose, 896 F.3d. 104, 106 (1st
Cir. 2018). This section defines a “crime of violence” as a felony
that “has as an element the use, attempted use, or threatened use
of physical force against the person or property of another.” See
18 U.S.C. 924(c)(3)(A).
Moreover, the Petitioner argues that the definition of “crime
of Violence” of Section 924(c)(3)(B) is unconstitutional because
Supreme
Court
precedent
has
declared
void
for
vagueness
the
similarly-worded definition of “crime of violence in 18 U.S.C. §
16(b). See Johnson v. United States, 576 U.S. 591 (2015).
Section
Civil No. 96-2151 (RAM)
7
924(c)(3)(B) is known as the “residual clause” and it defines a
“crime of violence” as a felony “that 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.”
See also United States v. Rose, supra.
After the Mr. Gandía-
Maysonet filed his Petition, the Supreme Court of the United States
held that Section 924(c) “residual clause” is unconstitutionally
vague. See United States v. Davis, 139 S.Ct. 2319 (2019).
However,
because Mr. Gandía-Maysonet was convicted of offenses that meet
924(c)(3)(A)’s
“force
clause”,
there
is
no
need
to
entertain
Defendant’s constitutional challenge to his conviction due to §
924(c)(3)(B)’s “residual clause” unconstitutional vagueness.
United
States
v.
Cruz-Rivera,
904
F.3d
63,
68
(1st
See
Cir.
2018)(Holding that § 924(c)(3)(A)’s “force clause” encompassed
defendant’s § 2119 convictions).
The federal carjacking statute provides in the relevant part
that:
Whoever, with the intent to cause death or serious
bodily harm takes a motor vehicle that has been
transported, shipped, or received in interstate or
foreign commerce from the person or presence of
another by force and violence or by intimidation,
or attempts to do so, shall— […] if death results,
be fined under this title or imprisoned for any
number of years up to life, or both, or sentenced
to death.
See 18 U.S.C. 2119(3).
According to Petitioner, the federal
carjacking statute is not a “crime of violence” under 924(c)’s
force clause because:
Civil No. 96-2151 (RAM)
8
(1) the offense can be committed by intimidation
which does not require violent force, (2) death
resulting does not require force as an element; (3)
aiding and abetting does not require the use of
violent force, and (4) the statute is indivisible,
meaning we must presume the most innocent conduct
proscribed by the federal carjacking statute formed
the basis of conviction.
Docket No. 8 at p. 11.1
As conceded by the Public Defender, these
arguments are precluded by First Circuit precedent.
In United States v. Cruz-Rivera, supra, the defendant likewise
contended that Section 2119 is an indivisible statute and not a
“crime of violence” because carjacking can be accomplished by
intimidation and thus, “the government need not prove the defendant
used “physical force.” Cruz-Rivera, 904 F.3d at 66. The First
Circuit did not agree and instead found that, even if Section 2119
is
indivisible,
924(c)’s
force
clause
can
be
satisfied
by
intimidation:
But, even assuming that § 2119 is indivisible as
Cruz contends, we have held, as the government
points out, that the force clause encompasses
federal bank robbery even though that offense, too,
may be committed through “intimidation.” United
States v. Ellison, 866 F.3d 32, 35 (1st Cir. 2017)
(holding that bank robbery was a “crime of
violence” under United States Sentencing Guideline
4B1.1(a) ); 18 U.S.C. § 2113(a); see also Hunter v.
United States, 873 F.3d 388, 390 (1st Cir. 2017)
(applying Ellison to § 924(c) and holding that
intimidation was sufficient to establish “violent
force” under § 924(c)(3)(A)). Given that § 2119
additionally requires that the government prove
that a defendant committed the carjacking offense
1
Indeed, “[w]here a statute is indivisible but lists multiple, alternative means
of satisfying an element, one or more of which can be achieved without violence,
the crime defined therein is not categorically a “crime of violence” even if the
defendant committed it by violent means identified in the statute.” United States
v. Delgado Sánchez, 849 F.3d 1, 9 (1st Cir. 2017).
Civil No. 96-2151 (RAM)
9
“with the intent to cause death or serious bodily
harm,” 18 U.S.C. § 2119, we do not see how Ellison
and Hunter may be distinguished. Nor does Cruz
offer any explanation of how they might be.
Id. (emphasis added).
The First Circuit concluded that 924(c)’s
force clause “encompassed” Cruz-Rivera’s Section 2119 conviction.
Id.
The
above
leaves
Petitioner’s
argument
that
“aiding
and
abetting” a crime of violence does not satisfy 924(c)’s force
clause.
Once
again,
First
Circuit
precedent
precludes
this
argument. In United States v. García-Ortiz, the defendant claimed
that aiding and abetting a Hobbs Act Robbery was not a “crime of
violence.”
Cir. 2018).
United States v. García-Ortiz, 904 F.3d 102, 108 (1st
The First Circuit found that 18 U.S.C. § 2 “makes an
aider and abettor ‘punishable as the principal,’ and thus no
different for purposes of the categorical approach than one who
commits the substantive offense.”
Id. at 109. See also Gonzales
v. Duenas Alvarez, 549 U.S. 183, 189 (2007) (“[E]very jurisdiction—
all States and the Federal Government—has ‘expressly abrogated the
distinction’ among principals and aiders and abettors”).
B. No certificate of appealability will be issued.
28 U.S.C.A. § 2253(c)(2) establishes that a district judge may
only
issue
a
certificate
of
appealability
of
a
section
2255
proceeding “if the applicant has made a substantial showing of the
denial of a constitutional right.” In this case, the Court will not
issue a certificate of appealability because, for the reasons
Civil No. 96-2151 (RAM)
10
discussed above, “there is no substantial showing of the denial of
a
constitutional
2253(c)(2).”
right
within
the
meaning
of
28
U.S.C.
§
See Morales Torres v. United States, 2019 WL 474217
at * 3 (Denying certificate of appealability in case dismissing
Section 2255 petition because Hobbs Act Robbery is a predicate
crime of violence under Section 924 (c)’s force clause).
IV.
CONCLUSION
The Motion to Lift Stay at Docket No. 12 is GRANTED. Based on
the foregoing, Defendant’s Motion to Vacate under 28 U.S.C. 2255
pursuant to Johnson vs. USA at Docket No. 1 is DENIED.
Judgment
of
dismissal
WITH
PREJUDICE
shall
be
entered
accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 22nd day of September 2020.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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