Millan-Isaac v. USA
Filing
11
OPINION AND ORDER denied 1 pro se Motion Under 28 U.S.C. § 2255, supplemented at docket entry 8 . No certificate of appealability shall be issued. Signed by Chief Judge Gustavo A. Gelpi on 1/23/2020. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
HERIBERTO MILLAN ISAAC
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
CIVIL 16-2286CCC
(Related Cr. 11-0557-01CCC)
OPINION AND ORDER
Before the Court is petitioner Heriberto Millán Isaac’s Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (d.e. 1) filed
June 27, 2016; petitioner’s Supplemental Motion (d.e. 8) file February 1, 2017;
and the United States’ Opposition (d.e. 10) filed May 5, 2017.
On January 24, 2012, petitioner plead guilty to Hobbs Act robbery,
18 U.S.C. § 1951, and possession of a firearm during and in furtherance of a
crime of violence, 18 U.S.C. § 924(c)(1)(A) (d.e. 1). Petitioner now brings a
§ 2255 petition seeking relief on the basis that Hobbs Act robbery does not
qualify as a “crime of violence” under Section 924(c).
A crime of violence is defined at 18 U.S.C. § 924(c):
(3)
For purposes of this subsection the term “crime of violence”
means an offense that is a felony and—
(A)
has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another, or
(B)
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.
Because this definition is disjunctive, petitioner’s argument must fail if
Hobbs Act robbery qualifies as a crime of violence under either
CIVIL 16-2286CCC
(Related Cr. 11-0557-01CCC)
2
Section 924(c)(3)(A), which is known as the “elements” clause, or
Section 924(c)(3)(B), which is known as the “residual” clause. United States v.
Davis, 139 S. Ct. 2319, 2324 (2019).
Petitioner first argues that Hobbs Act robbery does not qualify under the
residual clause found in Section 924(c)(3)(B) because the clause is
unconstitutionally vague. Since the petitioner’s filing, the Supreme Court of the
United
States
has
indeed
struck
down
Section
924(c)(3)(B)
as
unconstitutionally vague. Davis, 139 S. Ct. at 2336. Accordingly, petitioner is
correct that Hobbs Act robbery cannot be qualified as a crime of violence under
the residual clause found at Section 924(c)(3)(B).
Petitioner also argues that Hobbs Act robbery categorically fails to satisfy
the “elements” clause found at Section 924(c)(3)(A). In United States v.
Garcia-Ortiz, 904 F.3d 102 (1st Cir. 2018), the First Circuit held that: “because
the offense of Hobbs Act robbery has as an element the use or threatened use
of physical force capable of causing injury to a person or property, a conviction
for Hobbs Act robbery categorically constitutes a ‘crime of violence’ under
section 924(c)'s force clause.” Therefore, according to the law of the circuit,
Hobbs Act robbery is a crime of violence under Section 924(c)(3)(A).
Finally, petitioner argues that aiding and abetting Hobbs Act robbery
does not require violent force, and is therefore distinguishable from acting as
the principal for the purposes of determining whether an offense is a crime of
violence.
The Garcia-Ortiz holding also rejects this argument: because
18 U.S.C. § 2 makes an aider and abettor “punishable as a principal”, an aider
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3
an abettor “is no different for purposes of the categorical approach than one
who commits the substantive offense.” 904 F.3d at 109.
For the aforementioned reasons, petitioner Heriberto Millán Isaac’s
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(d.e. 1) is DENIED. Judgment shall be entered by separate order.
CERTIFICATE OF APPEALABILITY
The Court hereby ORDERS that no certificate of appealability shall be
issued as petitioner failed to make a substantial showing of the denial of a
constitutional right as required by 28 U.S.C. § 2253(c)(2).
SO ORDERED.
At San Juan, Puerto Rico, on January 23, 2020.
S/GUSTAVO A. GELPÍ
Chief United States District Judge
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