Lopez-Hernandez v. USA
Filing
5
OPINION AND ORDER - DISMISSING Petitioner's 1 pro se Motion to Vacate, Set Aside or Correct Sentence, with prejudice. Motion terminated: 4 Motion to Dismiss. Signed by Judge Carmen C. Cerezo on 4/11/2019. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ROBERTO J. LOPEZ HERNANDEZ
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
CIVIL 16-2306CCC
(Related Cr. 13-0534-38CCC)
OPINION AND ORDER
Before the Court is Roberto J. López Hernández’ (hereinafter “Petitioner”
or “López Hernández”) pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence filed on June 29, 2016 (d.e. 1). On August 31,
2016, the United States of America (hereinafter “Respondent”) filed a Motion
to Dismiss the Petition (d.e. 4). For the reasons discussed below, the Court
finds that the Petition must be and is hereby DISMISSED.
I.
BACKGROUND
On September 25, 2014, López Hernández pled guilty to conspiracy to
possess with intent to distribute controlled substances within a protected
location, in violation of 21 U.S.C. §§ 846 and 860 (Count One), and possession
of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C.
§§ 924(c)(1)(A) (Count Six) (Criminal 13-534(CCC), d.e. 1967). On April 28,
2015, he was sentenced to serve consecutive terms of imprisonment of
51 months and 60 months (Criminal 13-534(CCC), d.e. 3222). Petitioner filed
this 28 U.S.C. Section 2255 motion claiming entitlement to relief under
Johnson v. United States, 135 S.Ct. 2551 (2015), based on the fact that he
was convicted under Section 924(c).
II.
DISCUSSION
CIVIL 16-2306CCC
(Related Cr. 13-0534-38CCC)
2
In Johnson v. United States, ___ U.S. ____, 135 S.Ct. 2551 (2015), the
United States 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.” The ACCA 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 above is known as the ACCA's “residual clause.” The
Supreme Court determined that the ACCA's “residual clause” was
unconstitutionally vague since its application was too “wide-ranging” and
“indeterminate.” Id. 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).
Section 924(c)(1)(A), under which Petitioner was convicted, prohibits the
possession of a firearm in furtherance of a “crime of violence” or a drug
trafficking crime. Section 924(c)(3) defines “crime of violence” as “an offense
that is a felony and - (A) has as an element the use, attempted use, or
CIVIL 16-2306CCC
(Related Cr. 13-0534-38CCC)
3
threatened use of physical force against the person 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.”
18 U.S.C. § 924(c)(3)(B) (emphasis added). The underlined portion is known
as the “residual clause” of Section 924(c)(3).
However, Petitioner was
convicted and sentenced under 18 U.S.C. § 924(c)(1)(A)'s provision pertaining
to the use of a firearm during and in relation to a drug trafficking crime.
See United States v. Hare, 820 F.3d 93, 105-06 (4th Cir. 2016) (declining to
address the merits of defendant's Johnson claim where defendant was
convicted of possessing a firearm in furtherance of a drug trafficking crime).
Since
neither
Petitioner’s
conviction
nor
his
sentence
rest
upon
Section 924(c)'s definition of “crime of violence,” Johnson is inapplicable to the
circumstances of this case.
III.
CONCLUSION
For the reasons stated, the Court concludes that Petitioner Roberto
López Hernández’ Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or
Correct Sentence (d.e. 1) must be and is hereby DISMISSED, with prejudice.
Judgment to be entered on this same date.
SO ORDERED.
At San Juan, Puerto Rico, on April 11, 2019.
S/CARMEN CONSUELO CEREZO
United States District Judge
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