Robles-Rivera v. USA
Filing
7
OPINION AND ORDER granted 5 Motion to Dismiss; dismissed 1 pro se Motion to Vacate, Set Aside or Correct Sentence (2255) (Criminal Number 13-124-36). Signed by Judge Carmen C. Cerezo on 3/20/2019. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
YOXSAIRA ROBLES RIVERA
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
CIVIL 16-2534CCC
(Related Cr. 13-0124-36CCC)
OPINION AND ORDER
Before the Court is Yoxsaira Robles Rivera’s (hereinafter “Petitioner” or
“Robles Rivera”) pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside
or Correct Sentence filed on August 23, 2016 (d.e. 1). On November 28, 2016,
the United States of America (hereinafter “Respondent”) filed a Motion to
Dismiss the Petition (d.e. 5). For the reasons discussed below, the Court finds
the Petition shall be dismissed.
I.
BACKGROUND
On October 2, 2013, Yoxsaira Robles Rivera pled guilty to conspiracy to
possess with intent to distribute at least 500 grams, but less than 2 kilograms
of cocaine within 1,000 feet of a protected location in violation of 21 U.S.C.
§§ 841 (b)(1) (C) and 860 (Criminal No. 13-124(CCC), d.e. 577, d.e. 579). On
August 5, 2014, she was sentenced to serve a term of imprisonment of
60 months (Criminal No. 13-124(CCC), d.e. 1159).
Petitioner filed her
28 U.S.C. § 2255 motion seeking reduction of sentence under Johnson v.
United States, 135 S.Ct. 2551 (2015)1.
1
On October 19, 2016, the Federal Public Defender (“FPD”) filed an Informative Motion and
Request to Withdraw as Counsel, stating that Petitioner “does not appear to have been sentenced
under nor subject to a guideline provision potentially affected by Johnson, and her conviction did
CIVIL 16-2534CCC
(Related Cr. 13-0124-36CCC)
II.
2
DISCUSSION
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. Section 924(e)(2)(B)(ii) (emphasis added). The
underlined portion above is known as the ACCA's “residual clause.” The
Supreme
Court
determined
the
ACCA's
“residual
clause”
to
be
unconstitutionally vague because 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).
In the instant case, the record does not support Petitioner’s claim of relief
under Johnson. Petitioner was convicted and sentenced under 21 U.S.C.
not involve a ‘crime of violence’ or a ‘violent felony.’” (d.e. 3).
CIVIL 16-2534CCC
(Related Cr. 13-0124-36CCC)
3
§ 841(b)((1)(C)’s provision pertaining to a drug trafficking crime, not a “violent
felony.” Petitioner’s Criminal History Category (CHC) was determined to be I,
and she was not sentenced as a career offender. The record reflects that
Petitioner was convicted and sentenced pursuant to statutory provisions not
affected by Johnson.
Consequently, Johnson is inapplicable to the
circumstances of Petitioner’s case. Accordingly, Yoxsaira Robles Rivera’s
Motion seeking a reduction of sentence under Johnson is DENIED.
III.
CONCLUSION
For the reasons stated, the Court GRANTS Respondent’s Motion to
Dismiss the Petition (d.e. 5). Accordingly, Petitioner Yoxsaira Robles Rivera’s
Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence (d.e. 1) is DISMISSED, with prejudice. Judgment shall be entered
on this same date.
SO ORDERED.
At San Juan, Puerto Rico, on March 20, 2019.
S/CARMEN CONSUELO CEREZO
United States District Judge
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