Lopez-Perez v. USA
Filing
9
OPINION AND ORDER granted 7 USA's Motion to Dismiss 1 2 pro se Motions to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255. Signed by Judge Carmen C. Cerezo on 8/1/2019. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ALEXANDRA LOPEZ-PEREZ
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
CIVIL 16-2305CCC
Related Cr. 13-0124-33CCC
OPINION AND ORDER
Before the Court is petitioner’s Motion Pursuant to 28 U.S.C. § 2255 in
Light of the Retroactive Effect of Johnson (d.e. 1), placed in the prison mailbox
on June 22, 2016 and filed on June 28, 2016, petitioner’s second Motion to
Vacate and Correct Sentence Pursuant to 28 U.S.C. § 2255 (d.e. 2) filed on
August 22, 2016, petitioner’s Informative Motion (d.e. 6) filed on August 26,
2016, and the United States’ Motion to Dismiss Petitioner’s Motion (d.e. 7) filed
on August 31, 2016. For the reasons discussed below, the Court ORDERS
that the Motion to Dismiss (d.e. 7) is GRANTED and that petitioner’s Motion
(d.e. 1; d.e. 2) is DISMISSED.
I.
BACKGROUND
On February 13, 2014, the Court sentenced petitioner to sixty (60)
months of imprisonment (Crim. No. 13-124-33, d.e. 940, p. 1) after she pled
guilty to conspiracy with intent to distribute at least five-hundred (500) grams
but less than two (2) kilograms of cocaine within a protected location in
violation of 21 U.S.C. §§ 841(a)(1), 846, and 860 (Crim. No. 13-124-33,
d.e. 572, p. 2). A number of petitioner’s co-defendants were charged with a
CIVIL 16-2305CCC
(Related Cr. 13-0124-33CCC)
2
violation of 18 U.S.C. § 924(c)(1)(A), but petitioner was not (Crim.
No. 13-124-33, d.e. 3, pp. 2-3). Petitioner filed this 28 U.S.C. § 2255 motion
seeking that her sentence be vacated under Johnson v. United States,
___ U.S. ____, 135 S.Ct. 2551 (2015), which held unconstitutional part of
18 U.S.C. § 924.
II.
DISCUSSION
In Johnson v. United States, ___ U.S. ____, 135 S.Ct. 2551 (2015), the
U.S. Supreme Court held that the “residual clause” of the Armed Career
Criminal Act [“ACCA”] was unconstitutionally vague and that “imposing an
increased sentence under the residual clause of the [ACCA] violates the
Constitution's guarantee of due process.”
Johnson, ___ U.S. at ____,
135 S.Ct. at 2555-63. The ACCA provides for enhanced penalties for those
with three qualifying prior felony convictions for either serious drug offenses or
“violent felonies.”
It defines a “violent felony” as a 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.”
18 U.S.C. § 924(e)(2)(B)(ii) (emphasis added).
The
underlined portion is known as the ACCA's “residual clause.” The Supreme
Court has determined that the ACCA's “residual clause” is unconstitutionally
vague because its application was too “wide- ranging” and “indeterminate.” Id.
CIVIL 16-2305CCC
(Related Cr. 13-0124-33CCC)
3
On April 18, 2016, the United States Supreme Court determined that Johnson
announced a new substantive rule that applies retroactively to cases on
collateral review. Welch v. United States, ___ U.S. ____, 136 S.Ct. 1257,
194 L.Ed. 2d 387 (2016).
Asking for relief under Johnson, petitioner first asserted that her sentence
was affected by a finding that she had a prior crime of violence as defined in
18 U.S.C. § 16 (d.e. 1) and later asserted that her sentence was based on a
finding that she had a prior crime of violence pursuant to U.S.S.G. § 4B1.1
(d.e. 2). Petitioner then corrected herself in her Informative Motion (d.e. 6),
explaining: “the petitioner was neither sentenced under nor subject to the
Armed Career Criminal Act (‘ACCA’), 18 U.S.C. § 924(e), or the Career
Offender guideline, U.S.S.G. § 4B1.1. In addition, her offense of conviction did
not involve a ‘crime of violence’ or a ‘violent felony.’”
Petitioner’s sentence of sixty (60) months was based on the statutory
minimum for her crime pursuant to 21 U.S.C. § 841(b)(1)(B)(II). Her base
offense level was not adjusted due to any finding that she had a prior crime of
violence, and her guideline minimum was ultimately determined by the statutory
minimum rather than by her offense level. The ruling in Johnson did not affect
any statutes under which petitioner was sentenced and has no application to
her case.
CIVIL 16-2305CCC
(Related Cr. 13-0124-33CCC)
III.
4
CONCLUSION
For the reasons stated, the Court GRANTS the United States’ Motion to
Dismiss (d.e. 7) and DISMISSES petitioner’s Motions (d.e. 1; d.e. 2), with
prejudice.
The Court admonishes petitioner not to make material
misrepresentations of fact to the Court.
Judgment to be entered on this same date.
SO ORDERED.
At San Juan, Puerto Rico, on August 1, 2019.
S/CARMEN CONSUELO CEREZO
United States District Judge
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