Laureano-Salgado v. USA
Filing
15
OPINION AND ORDER: For the reasons set forth in this Opinion and Order, Petitioner Jose Laureano-Salgado's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1 ) is DENIED. Judgment of dismissal WITH PREJUDICE will be entered accordingly. Signed by Judge Raul M. Arias-Marxuach on 9/30/2021. (mrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
JOSÉ LAUREANO-SALGADO,
Plaintiff,
CIVIL. NO. 17-1205 (RAM)
v.
UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, District Judge
Pending
before
the
Court
is
Petitioner
José
Laureano-
Salgado’s (“Petitioner” or “Laureano-Salgado”) Motion Under 28
U.S.C § 2255 to Vacate, Set Aside or Correct Sentence by a Person
in Federal Custody (“§ 2255 motion”). (Docket No. 1). Having
considered the arguments of the parties at Docket Nos. 1, 11, and
14, the Court DENIES Petitioner’s § 2255 motion. No certificate of
appealability shall issue as the § 2255 motion fails to make a
substantial
pursuant
to
showing
28
of
U.S.C.
the
denial
of
§ 2253(c)(2).
a
In
constitutional
accordance
with
right
Rule
22(b)(1) of the Federal Rules of Appellate Procedure, Petitioner
may still seek a certificate directly from the United States Court
of Appeals for the First Circuit (“First Circuit”). Judgment of
DISMISSAL WITH PREJUDICE shall be entered accordingly.
Civil No. 17-1205 (RAM)
2
I.
BACKGROUND
A. Criminal Case No. 12-cr-00200-15 1
On
June
20,
2012,
a
Grand
Jury
returned
a
Superseding
Indictment (“the Indictment”) in case 12-cr-00200. (Docket Nos. 1
and 196). Petitioner was charged in five counts of a 33-count
indictment.
Id.
The
Counts
included:
Count
1:
Racketeering
Influenced and Corrupt Organizations Act in violation of 18 U.S.C.
§ 1962(d) and 2; Count 2: Conspiracy to Possess with Intent to
Distribute a Controlled Substance in violation of 21 U.S.C. § 846,
806 and 2; Count 3: Conspiracy to Possess Firearms During and in
Relation to Narcotics Trafficking Offenses in violation of 18
U.S.C.
§
924(c)(1)(1);
Racketeering
Activity
Count
(“VICAR”)
29:
in
Violent
Crime
violation
of
in
18
Aid
U.S.C.
of
§
1959(a)(1) and 2; and Count 30: Use and Carry of a Firearm in
Relation to a Crime of Violence in violation of 18 U.S.C. §
924(c)(1)(A), 924(j)(1) and 2. Id. at 3-23 and 52-53.
After a seven-day trial, the jury returned a guilty verdict
as to all five counts for Laureano-Salgado and co-defendants Pedro
L.
Ramírez-Rivera
(“Ramírez-Rivera”)
and
Ismael
E.
Cruz-Ramos
(“Cruz-Ramos”). (Docket Nos. 794; 986-990). An Amended Judgment
was entered against Laureano-Salgado on October 7, 2013. (Docket
No. 1205). He was sentenced therein to forty (40) years as to Count
1
Any reference to a docket entry in this section will only refer to docket
entries in Criminal Case No. 12-cr-00200-15.
Civil No. 17-1205 (RAM)
3
1, ten (10) years as to Count 2, Twenty (20) years as to Count 3,
Life in Prison Without Possibility of Parole as to Count 29 and
twenty (20) years as to Count 30. (Docket No. 1205 at 3). He was
also sentenced to two (2) years of supervised release as to Count
2. Id. at 4.
Petitioner appealed his judgment, raising multiple issues
regarding
jury
empanelment,
jury
instructions,
impeachment
of
witness, vouching for a witness, and sentencing errors, among
others. (Case No. 12-cr-00200-15, Docket No. 1208; Civil Case No.
17-1205, Docket No. 1 at 2). The Court of Appeals for the First
Circuit (“First Circuit”) ultimately affirmed Laureano-Salgado’s
conviction and sentence. See e.g., United States v. RamírezRivera, 800 F.3d 1, 27 (1st Cir. 2015), cert denied, 577 U.S. 1108
(2016), abrogated on other grounds by United States v. LeonerAguirre, 939 F.3d 310 (1st Cir. 2019).
Petitioner subsequently requested the district court order a
new
trial
stemming
from
newly
discovered
evidence
allegedly
showing that Christian Toledo Sanchez, alias “Pekeke,” the leader
of the gang La Rompe, was killed by members of La Rompe and not by
members of the rival gang La ONU. (Docket No. 1891 at 5-10).
Laureano-Salgado, a member of La ONU, had been found guilty of
killing Pekeke alongside Ramírez-Rivera and Cruz-Ramos. (Docket
Nos. 196 at 52; 1205 at 2). This murder was the predicate “crime
of violence” for his § 924(c) conviction under Count 30 (Use and
Civil No. 17-1205 (RAM)
4
Carry of a Firearm in Relation to a Crime of Violence in violation
of 18 U.S.C. § 924(c)(1)(A), 924(j)(1) and 2). (Docket Nos. 196 at
53; 1205 at 2). The District Court eventually denied the request
for new trial. (Docket No. 1936).
Laureano-Salgado appealed this decision. (Docket No. 1938).
The First Circuit affirmed the denial because “the alleged new
evidence cannot be reasonably viewed as ‘greatly undermin[ing]’
the pertinent verdicts.” United States v. Laureano-Salgado, 933
F.3d 20, 32 (1st Cir.), cert. denied, 140 S. Ct. 619 (2019),
and cert. denied sub nom. Ramirez-Rivera v. United States, 140 S.
Ct. 977 (2020) (quotation omitted).
B. Civil Case No. 17-1205
In his § 2255 motion, Laureano-Salgado requests that his
sentence be remanded for resentencing or, in the alternative, for
an evidentiary hearing. (Docket No. 1-1 at 27). His first two
grounds
for
resentencing
aver
that
his
counsel
provided
ineffective assistance of counsel. (Docket Nos. 1 at 5-6; 1-1 at
4-17).
The
first
ground
states
that
“[t]rial
counsel
was
ineffective when he failed to file a motion to suppress the
warrantless search of the residence where the firearms and the
drugs
that
were
presented
against
[R]amirez-[R]ivera
were
submitted during trial.” (Docket No. 1 at 5). Whereas the second
ground
argues
that
“[t]rial
counsel
rendered
ineffective
assistance when he failed to object to the prosecutor vouching for
Civil No. 17-1205 (RAM)
5
the testimony of witness [Christian] Figueroa-Viera during the
trial.” Id. at 6. Furthermore, the third and fourth grounds claim
that Laureano-Salgado’s sentence must be vacated in light of the
Court of Appeals for the Eleventh Circuit’s United States v.
Johnson, 803 f.3d 610 (11th Cir. 2015) and the United States
Supreme Court’s decision in Johnson v. United States, 576 U.S. 591
(2015). (Docket No. 1 at 7-8; 1-1 at 17-27). 2
On December 13, 2019, Defendant United States of America (“the
Government”) responded to Petitioner’s § 2255 motion (“Response”).
(Docket
No.
11).
Regarding
Petitioner’s
first
ground,
the
Government contends that his counsel did not provide ineffective
assistance for failing to move to suppress evidence in another codefendant’s property because Laureano-Salgado lacks standing to
suppress said evidence. Id. at 6-7. As to the second ground, it
held that Laureano-Salgado’s counsel was not ineffective because
per First Circuit precedent, once the plea agreement’s content was
admitted at trial, a prosecutor can comment upon a witness’s
motivation to testify truthfully. Id. at 7-8. As to the third and
fourth grounds, the Government posits that Petitioner is not
2 The Court notes that the § 2255 motion’s first, third and fourth grounds
inadvertently state that “Ramirez-Rivera’s” rather than “Laureano-Salgado’s”
counsel was ineffective for failing to file a motion to suppress and that his
sentence must be vacated in light of the Eleventh Circuit and Supreme Court
decisions. (Docket No. 1 at 4, 7-8). The accompanying Memorandum of Law to the
§2255 motion correctly states that Laureano-Salgado’s sentence must be vacated
on those grounds. (Docket No. 1-1). The Court finds this to be a harmless error,
particularly taking into account that Ramírez-Rivera filed in this district
court an identical § 2255 motion to the one in the case at bar. See Civil Case
No. 17-1206, Docket No. 1.
Civil No. 17-1205 (RAM)
6
entitled to relief under the Supreme Court’s decision because
“murder,”
the
predicate
offense
to
Petitioner’s
§
924(c)
conviction, is a “crime of violence” under the elements clause (or
the “force clause”) of § 924(c). Id. at 8-9. Lastly, it argues
that an evidentiary hearing is not proper and that the Court should
not grant a certificate of appealability. Id. at 9-10.
On February 18, 2020, Laureano-Salgado replied (“Reply”) to
the Government’s Response. (Docket No. 14). He reiterates his claim
that his trial counsel rendered ineffective assistance by not
objecting to the Government’s vouching for a cooperating witness
which caused an “inference of verification [by the Government] of
[the witness’s] testimony.” Id. at 1-4. He also states that his
case requires an evidentiary hearing due to the Supreme Court’s
decision in United States v. Davis, 139 S. Ct. 2319 (2019), which
ruled that 18 U.S.C. § 924(c)(3)(B) was unconstitutionally vague.
Id. at 4-5. This because the jury verdict left it unclear whether
the § 924(c) conviction was based on Count 1 or Count 29. Id. at
5. Lastly, he repeats his request for an evidentiary hearing. Id.
II.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255, a prisoner who is in custody
under a sentence imposed by a Federal Court may move to vacate,
set aside, or correct his sentence:
[U]pon the ground that the sentence was
imposed in violation of the Constitution or
laws of the United States, or that the court
Civil No. 17-1205 (RAM)
7
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’s post-conviction request for relief “must show
that
his
sentence
‘reveal[s]
fundamental
defects
which,
if
uncorrected, will result in a complete miscarriage of justice.’”
Lebron-Martinez v. United States, 2021 WL 3609658, at *2 (D.P.R.
2021) (quoting Gomez-Olmeda v. United States, 2021 WL 785725, at
*2 (D.P.R. 2021)). Petitioner has the burden of establishing such
a defect. Id. Moreover, an evidentiary hearing on a § 2255 petition
is not necessary when the motion “is inadequate on its face.” Id.
(quoting Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974)). Nor
is it necessary when there are no factual issues to be resolved.
Id. (quoting 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 an oral presentation).
III. DISCUSSION
Petitioner’s § 2255 motion does not require resolving factual
issues as he only presents legal issues. Id. at *2; see also
Forteza-Garcia v. United States, 2021 WL 784875, at *2 (D.P.R.
2021). Thus, a hearing is not necessary in this case.
Civil No. 17-1205 (RAM)
8
A. Ground One: Ineffective Assistance of Counsel for
Failing to File a Motion to Suppress
Petitioner avers his counsel was ineffective by failing “to
file a motion to suppress the warrantless search of the residence
where the firearms and the drugs” were found and presented against
Laureano-Salgado
during
trial.
(Docket
No.
1
at
5).
In
his
petition, Laureano-Salgado references a motion to suppress filed
by
his
co-defendant
Cruz-Ramos’s
counsel
regarding
guns
and
narcotics found after a warrantless search of Cruz-Ramos’s car and
house where another of the defendants implicated in the Indictment,
Edwin
Bernardo
Astacio-Espino,
and
Cruz-Ramos
were
located.
(Docket No. 1-1 at 12). Ultimately, the First Circuit held that
Cruz-Ramos was entitled to a new trial based on suppression error.
See Ramírez-Rivera, 800 F.3d at 23-35. Therefore, Laureano-Salgado
argues his counsel “had an obligation to motion the court for the
suppression
of
the
evidence
from
the
illegal
search
of
the
residence in order to avoid the spillover effect of the illegally
seized evidence being used against Laureano-Salgado during the
trial.” (Docket No. 1-1 at 12-13).
In
response,
the
Government
posits
that
Laureano-Salgado
lacks standing to challenge his counsel’s failure to file a motion
to suppress because Fourth Amendment rights are personal rights.
Civil No. 17-1205 (RAM)
9
(Docket No. 11 at 6). 3 Therefore, Laureano-Salgado must show he
had an actual and subjective expectation of privacy over the place
searched. Id. Since his § 2255 motion does not argue he had such
an expectation over the house or car in question, his counsel was
under no obligation to file a motion to suppress. Id. Finally,
even without that physical evidence, the Government contends there
was sufficient testimony from the cooperating witnesses at trial
to sustain Laureano-Salgado’s conviction. Id. at 7.
The Court agrees with the Government. To start, LaureanoSalgado does not allege he was a victim of an unlawful search and
seizure or invasion of privacy. See Alderman v. United States, 394
U.S. 165, 173 (1969). Furthermore, as a defendant challenging an
unreasonable search, he “bears the burden of persuasion” that not
only did he “exhibit[t] a subjective expectation of privacy, but
also that his expectation was justifiable under the attendant
circumstances.” United States v. Lewis, 40 F.3d 1325, 1333 (1st
Cir.
1994)
possession,
(quotation
omitted).
Factors
such
control, ability to exclude others
as
and
“ownership,
legitimate
presence on the premises may be taken into consideration” when
determining
3
the
reasonableness
of
an
expectation
of
privacy.
The Fourth Amendment of the United States Constitution protects the “right of
the people to be secure in their persons ... and effects, against unreasonable
searches and seizures.” United States v. Sierra-Ayala, 2019 WL 4391542, at *2
(D.P.R. 2019) (quoting U.S. Const. amend. IV); see also United States v. RiveraCarrasquillo, 933 F.3d 33, 40 (1st Cir. 2019), cert. denied, 2020 WL 1906676,
(2020) (“Fourth Amendment rights are personal ones.”) (citation omitted).
Civil No. 17-1205 (RAM)
10
United States v. Cintron-Echautegui, 2007 WL 9643013, at *5 (D.P.R.
2007), report and recommendation adopted, 2008 WL 11306534 (D.P.R.
2008), aff'd, 604 F.3d 1 (1st Cir. 2010).
Here, Laureano-Salgado failed to show he had control over the
searched premises or that, for example, he had any ability to
exclude others from entering Cruz-Ramos’s car or house. Therefore,
he could not have had any reasonable expectation of privacy over
either place, or any evidence found therein. As a result, he had
no standing to aver a violation of his Fourth Amendment rights
through a motion to suppress. See United States v. Ramos-Gonzalez,
2010 WL 4181674, at *3 (D.P.R. 2010) (“An accused party lacks
standing to challenge the admission of evidence under the Fourth
Amendment
when
expectation
of
he
does
privacy
not
in
have
the
a
area
subjective
searched
and
or
reasonable
the
evidence
seized.”) (quoting Minn. v. Carter, 525 U.S. 83 at 91 (1988)).
Thus, Laureano-Salgado’s claim for ineffective assistance of
counsel as to his first ground fails under the first prong of
the Strickland standard. See Strickland v. Washington, 466 U.S.
668 (1984). Pursuant to Strickland, to prevail in a claim for
ineffective assistance of counsel, the petitioner must show: “[1]
that
his
standard
prejudiced
‘counsel's
of
representation
reasonableness’ and [2]
him.” Camacho-Santiago
v.
fell
below
that
United
an
such
objective
deficiency
States,
2021
WL
813212, at *3 (D.P.R. 2021) (quoting Feliciano-Rodríguez v. United
Civil No. 17-1205 (RAM)
11
States, 986 F.3d 30, 36 (1st Cir. 2021)). The two prongs of
the Strickland standard can be addressed in any order, and failure
to satisfy either is fatal. See United States v. Carrigan, 724
F.3d 39, 44 (1st Cir. 2013) (abrogation on other grounds recognized
by United
States
Strickland’s
v.
first
representation
Faust,
prong
fell
853
is
below
F.3d
39
surpassed
an
(1st
Cir.
where
objective
2017)).
“counsel's
standard
of
reasonableness.” Strickland, 466 U.S. at 688. Thus, the Court must
determine whether counsel's failure to file a motion to suppress
on
behalf
of
“[j]udicial
Petitioner
scrutiny
of
fell
below
counsel's
said
standard.
performance
must
Notably,
be
highly
deferential.” Id. at 689. Likewise, the Court should “indulge a
strong presumption that counsel's conduct falls within the wide
range
of
reasonable
professional
assistance.” Casey
v.
United
States, 2021 WL 1821899, at *2 (D.P.R. 2021) (quoting Rossetti v.
United States, 773 F.3d 322, 327 (1st Cir. 2014)).
The Court finds that Petitioner's counsel provided effective
assistance of counsel. Counsel's failure to file a motion to
suppress was not unreasonable considering that Laureano-Salgado
lacked standing to object to the search of the residence where
Cruz-Ramos and the other defendant were located and of Cruz-Ramos’s
car. See e.g., Acha v. United States, 910 F.2d 28, 32 (1st Cir.
1990) (stating that “[t]rial counsel was under no obligation to
raise meritless claims. Failure to do so does not constitute
Civil No. 17-1205 (RAM)
12
ineffective assistance of counsel.”). As Petitioner has failed to
surpass the first Strickland prong, the Court need not address the
second. See Carrigan, 724 F.3d at 44. Tellingly, Petitioner’s Reply
failed to rebut the Government’s contention that he lacked standing
to file a motion to suppress evidence over another co-defendant’s
property.
B. Ground Two: Ineffective Assistance of Counsel for Failing to
Object to the Prosecutor’s Questions
Petitioner also avers his counsel was ineffective for failing
to object to the prosecutor’s purported vouching for the testimony
of Christian Figueroa-Viera (“Figueroa-Viera”) during LaureanoSalgado’s trial. (Docket Nos. 1 at 6; 1-1 at 14-17). Petitioner
claims his counsel should have objected to questions made to
Figueroa-Viera regarding the terms of his plea and cooperation
agreements, his obligations to tell the truth and what would happen
to him if he failed to do so. (Docket No. 1-1 at 14-15). These
questions were allegedly improper because “[o]nce the jury hears
the agreements [sic] requirements, [and] that the witness tells
the truth or else suffers the consequences of having additional
charges imposed against him, and not being allowed to testify,”
questions about said agreement lead “the jury to reach a conclusion
that the witness' testimony had been verified since the witness
had suffered no repercussions[.]” Id. at 16.
Civil No. 17-1205 (RAM)
13
In contrast, the Government contends that evidence of a
witness’s plea agreement is admissible to “dampen the effect of an
anticipated attack on that witness’s credibility.” (Docket No. 11
at
7).
Defense
credibility
in
counsel
his
purportedly
opening
attacked
statement
and
Figueroa-Viera’s
throughout
cross-
examination, thus a review of the plea agreement was proper. Id.
at 7-8. The Government then claims that a prosecutor may discuss
the witness’s motivation to testify truthfully. Id. at 8. Hence,
since
questions
about
the
agreement’s
terms
were
lawful,
Petitioner cannot show his counsel was ineffective. Id.
Vouching takes place when a prosecutor tries to strengthen
the government's case by implying a “personal belief in a witness's
veracity
or
prosecution's
[suggesting]
evidence
that
simply
the
because
jury
the
should
credit
government
can
the
be
trusted.” United States v. Padilla-Galarza, 990 F.3d 60, 82 (1st
Cir. 2021) (quoting United States v. Rodríguez-Adorno, 695 F.3d
32, 40 (1st Cir. 2012)); see also Ayala-Vazquez v. United States,
2018 WL 5734595, at *8 (D.P.R. 2018). Admission of plea agreements
into
evidence
is
not
considered
vouching.
Notably,
Laureano-
Salgado conceded “it is perfectly permissible for a prosecutor to
introduce a witness's plea agreement on direct examination, even
if it includes a truthfulness provision.” (Docket No. 1-1 at 16).
Here, the quoted section in Petitioner’s § 2255 motion, which
is only two pages out of the 184-page transcript for just the
Civil No. 17-1205 (RAM)
14
second day of a 7-day trial, shows that the prosecutor asked
Figueroa-Viera about specific paragraphs in his plea agreement,
his responsibility to tell the truth thereunder, and about what
would happen if he failed to tell the truth, to which he replied
that “[he] couldn’t cooperate [with the government] anymore.”
(Case No. 12-cr-00200-15, Docket No. 986 at 149-152; Case No. 171205, Docket No. 1-1 at 14-15). This does not suffice to show
improper vouching by the prosecutor. See Padilla-Galarza, 990 F.3d
at 83 (“[n]or do we accept the appellant's argument, tendered
without citation to any relevant authority, that the prosecutor's
repetition
of
the
information
by
some
thaumaturgical
alchemy
transformed a proper statement into an improper one.”) As evinced
by the trial transcript, the prosecution did not integrate into
their
line
suggestion
of
that
questioning
‘facts
not
any
“‘personal
before
the
assurances’
jury
or
any
support[ed]
the
witness's testimony.’” Padilla-Galarza, 990 F.3d at 83 (quoting
United States v. Rosario-Diaz, 202 F.3d 54, 65 (1st. Cir 2000)).
Therefore, just as in Ayala-Vazquez v. United States, “the court
concludes that no vouching occurred because the jury had access to
the whole picture presented by” the witness’s plea agreement “and
it could ‘assess, as best it can, the probable motives or interests
the witnesses could have in testifying truthfully or falsely.’”
Ayala-Vazquez, 2018 WL 5734595, at *8 (quoting United States v.
Martin, 815 F.2d 818, 821 (1st Cir. 1987)).
Civil No. 17-1205 (RAM)
15
The Court finds that Petitioner's counsel provided effective
assistance to Petitioner. Given that the prosecutor's examination
of Figueroa-Viera regarding the terms of his plea and cooperation
agreements was lawful, Laureano-Salgado cannot show his counsel's
failure to object to improper vouching was below the standard of
reasonableness
required
by
Strickland.
See
William
v.
United
States, 2009 WL 3489912, at *5 (D. Mass. 2009) (holding that
“[b]ecause the prosecution's references to the plea agreement and
its effect on Jean–Baptiste's incentive and obligation to tell the
truth were lawful, petitioner cannot show that counsel's failure
to object fell below any objective standard of reasonableness.”).
More so considering that the First Circuit has held that “[a]n
argument that does no more than assert reasons why a witness ought
to be accepted as truthful by the jury is not improper witness
vouching.” United States v. Walker-Couvertier, 860 F.3d 1, 12 (1st
Cir. 2017) (quoting United States v. Perez-Ruiz, 353 F.3d 1, 10
(1st Cir. 2003)) (emphasis added); see also United States v.
Millan, 230 F.3d 431, 438 (1st Cir. 2000) (finding no error where
“the prosecutor simply pointed out a fact in evidence—that Aleman's
plea agreement required her to testify candidly—and asserted that
she had upheld her end of the bargain by doing so.”) As with the
first ground, given that Petitioner failed to surpass the first
Strickland prong regarding the ineffective assistance claim in his
second ground, the Court need not address the second prong.
Civil No. 17-1205 (RAM)
16
C. Grounds Three and Four: Predicate Offenses and “Crime of
Violence”
Petitioner’s third and fourth grounds argue that his sentence
must be vacated in light of the Court of Appeals for the Eleventh
Circuit’s United States v. Johnson, 803 f.3d 610,
and the United
States Supreme Court’s decision in Johnson v. United States, 576
U.S. 591. (Docket No. 1 at 7-8; 1-1 at 17-27). In essence,
Laureano-Salgado claims the offense serving as a basis for his §
924(c) charge is not a “crime of violence,” thus his § 924(c)
conviction
should
be
vacated.
(Docket
No.
1-1
at
17-27).
He
maintains that “the statute does not require the threat of violent
physical force against persons or property in every case” and that
the predicate offense in Count 29 is not a “crime of violence[.]”
Id. at 25.
On the other hand, the Government posits that Petitioner is
not entitled to relief under the Supreme Court decision
because
“murder,” the predicate offense to Petitioner’s § 924(c) charge,
is a “crime of violence” under the elements clause (or “force
clause”) of § 924(c). (Docket No. 11 at 8-9). It points out that
courts have held that federal murder is a crime of violence under
the elements clause of § 924(c)(3). Id. at 9.
i.
Section 924 (C)(3)(A) and the approaches to analysis of
whether a predicate offense is a “crime of violence”.
Section 924(c)(1) provides for enhanced penalties to:
Civil No. 17-1205 (RAM)
17
[A]ny person who, during and in relation to
any crime of violence or drug trafficking
crime (including a crime of violence or drug
trafficking crime that provides for an
enhanced punishment if committed by the use of
a deadly or dangerous weapon or device) for
which the person may be prosecuted in a court
of the United States, uses or carries a
firearm, or who, in furtherance of any such
crime, possesses a firearm[.]
18 U.S.C. § 924(c)(1). Furthermore, Section 924(c)(3) contains two
definitions of the statutory term “crime of violence,” namely a
crime that:
(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.
18 U.S.C. § 924 (c)(3). Section 924(c)(3)(A) is known as the “force
clause”. See United States v. Rose, 896 F.3d. 104, 106 (1st Cir.
2018)(emphasis added). Whereas section 924(c)(3)(B) is known as
the “residual clause.” Id. The Court need not dwell on subsection
“B,”
or
any
of
Laureano-Salgado’s
claims
regarding
said
subsection, as it has been declared unconstitutional. See Davis,
139 S. Ct. at 2233.
As
explained
by
the
First
Circuit,
the
first
step
in
determining whether a statute is a “crime of violence” under
Section 924(c)(3)(A)’s force clause, is to ascertain “whether the
Civil No. 17-1205 (RAM)
criminal
statute
of
18
the
predicate
offense
is
indivisible
or
divisible.” King v. United States, 965 F.3d 60, 65 (1st Cir. 2020).
An indivisible statute contains a “single, indivisible set of
elements[,]” instead of containing alternative elements, “that
criminalizes a broader swath of conduct than the relevant generic
offense.” Descamps v. United States, 570 U.S. 254, 258 (2013). It
may also “enumerate[] various factual means of committing a single
element.” United States v. Faust, 853 F.3d 39, 52 (1st Cir. 2017);
see also Mathis v. United States, 136 S.Ct. 2243, 2249 (2016)
(providing
hypothetical
examples
of
indivisible
statutes).
Conversely, a statute is considered “divisible” when it “sets out
one or more elements of the offense in the alternative[,]” thereby
“listing potential offense elements.” Descamps, 570 U.S. at 257,
260.
A
“divisible”
statute
therefore
“comprises
multiple,
alternative versions of the crime.” Id. at 262.
To determine whether an indivisible statute is a “crime of
violence,” courts apply 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 an element
of the crime.” United States v. Taylor, 848 F.3d 476, 491 (1st
Cir. 2017) (emphasis added). However, for divisible statutes,
courts use a “modified categorical approach.” This approach is
used when certain “alternative elements require the use, attempted
use, or threatened use of physical force while others do not[.]”
Civil No. 17-1205 (RAM)
19
King, 956 F.3d at 66. It consists of analyzing a limited set of
Shepard
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.
Delgado-Sánchez, 849 F.3d 1, 8 (1st Cir. 2017) (quoting United
States v. Castro-Vazquez, 802 F.3d 28, 35 (1st Cir. 2015)). By
looking at those documents, courts can “determine which of the
enumerated alternatives within the statute constituted the actual
crime of conviction.” King, 965 F.3d at 66 (citation omitted).
These documents also help the reviewing court to “compare[] only
this specific offense with the relevant generic offense.” United
States v. Burghardt, 939 F.3d 397, 406 (1st Cir. 2019) (citing
Mathis,
136
S.Ct.
at
2249).
Moreover,
“under
the
modified
categorical approach, if the crime of conviction involves the use,
attempted use, or threatened use of physical force against the
person or property of another, then the offense qualifies a crime
of violence under § 924(c)’s force clause.” King, 965 F.3d at 66
(citation omitted).
ii.
The predicate offense in 18 U.S.C. § 1959(a)(1) and 2 is a
“crime of violence” for purposes of 18 U.S.C. §
924(c)(3)(A)’s force clause.
Laureano-Salgado
contends
the
underlying
crime
to
his
924(c)(3) and (j) conviction, i.e. the murder of Pekeke set forth
Civil No. 17-1205 (RAM)
20
in Count 29, is not a “crime of violence” for § 924(c)’s force
clause. (Docket No. 1-1 at 25-27). The Court disagrees.
The Puerto Rico Penal Code’s Article 105 defines murder as
“kill[ing] another human being with intent.” P.R. Laws Ann. tit.
33, § 4733. The relevant part of the Penal Code further defines
first-degree murder as “[a]ny murder committed by means of poison,
stalking or torture, or with premeditation.” P.R. Laws Ann. tit.
33, § 4734(a). Whereas “[a]ny other intentional killing of a human
being constitutes second degree murder.” P.R. Laws Ann. tit. 33,
§ 4734(a).
While the First Circuit has not weighed in on the issue,
Article 106 of the Puerto Rico Penal Code as it pertains to first
degree murder, is a divisible statute. As the highlighted text
shows, the statute provides that murder can be committed through
several means including “with premeditation.” Moreover, while not
in
the
context
of
the
Racketeering
Influenced
and
Corrupt
Organizations Act, the First Circuit has held that second-degree
murder and attempted murder under Puerto Rico law requires the
“use of physical force” and therefore qualifying as a “violent
felony” under the analogous Armed Career Criminal Act’s (“ACCA”)
force clause. See United States v. Baez-Martinez, 258 F. Supp. 3d
228, 232 (D.P.R. 2017), aff'd, 950 F.3d 119 (1st Cir. 2020)
(“Accordingly, second degree murder, as defined by Puerto Rico
Civil No. 17-1205 (RAM)
21
law, categorically requires the “use of physical force” under the
ACCA.) To wit, the Baez-Martinez court held that:
It can hardly be denied that an unnatural
death is a type of physical injury—in fact it
is the ultimate physical injury. [. . .] Thus,
if a person causes the unlawful death of
another person, they have caused physical
injury,
and
causing
physical
injury
“categorically involves the use of force
capable of causing physical pain or injury to
another person.”
Id. at 233 (quoting United States v. Castleman, 572 U.S. 157, 175
(2014) (Scalia, J., concurring) (internal citations and quotation
marks omitted). The First Circuit later clarified, in affirming
the decision in Baez-Martinez, that “since murder always results
in death (and death is the ultimate injury), the violent-force
requirement is satisfied. […] [I]f murder requires violent force
because death results, then attempted murder does, too, because
the defendant attempted to reach that result.” Baez-Martinez, 950
F.3d at 132 (1st Cir. 2020), cert. denied, 2021 WL 2519179 (U.S.
2021), reh'g
denied, 2021
Circuit Court of Appeals
WL
3711654
(U.S.
2021).
The
Fourth
reached a similar conclusion in In re
Irby when it concluded that “second-degree retaliatory murder is
a crime of violence under the force clause of § 924(c).” In re
Irby, 858 F.3d 231, 238–39 (4th Cir. 2017). It reached this
conclusion in part because “[c]ommon sense dictates that murder is
Civil No. 17-1205 (RAM)
22
categorically a crime of violence under the force clause.” Id. at
237 (citation omitted).
Pursuant to the modified categorical approach, the Court
reviewed the Indictment and the trial transcript. (Case No. 12cr-00200-15, Docket Nos. 196 and 986-990; 1423, 1433 and 1451).
These documents show that Laureano-Salgado’s conviction for Count
30 was premised on a finding that Petitioner was guilty on Count
29 of the Indictment.
Count 29 of the Indictment charged Laureano-Salgado and his
co-defendants with:
[A]s consideration for the receipt of, and as
consideration for a promise and an agreement
to pay, a thing of pecuniary value from the
enterprise, and for the purpose of gaining
entrance to and maintaining and increasing
position in the enterprise, an enterprise
engaged in racketeering activity, [. . .]
aiding and abetting each other and others
known and unknown, did intentionally, as that
term is defined in Puerto Rico Penal Code,
Article 23, murder Christian Toledo Sanchez,
a/k/a "Pekeke," in violation of the Puerto
Rico Penal Code, Articles 105 and 106 (2004).
All in violation of Title 18, United States
Code, Sections 1959(a)(l) and 2.
(Case No. 12-cr-00200-15, Docket No. 196 at 52) (emphasis added).
Furthermore, although the indictment did not specify whether
the VICAR conviction was predicated on a first-degree or seconddegree murder charge, the District Court instructed the jury on
first-degree murder. When explaining the jury instruction for
Civil No. 17-1205 (RAM)
23
Count 29 and the Government’s burden to prove that Laureano-Salgado
and his co-defendants committed a crime of violence, that is
Pekeke’s murder, the Judge overseeing the trial explained that:
Articles 105 and 106 of the Puerto Rico Penal Code
prohibit murder and first degree murder. To commit
murder the Government must prove, beyond a reasonable
doubt, that the Defendant intentionally caused the death
of a person. To commit first degree murder, as I told
you, the Government must prove that the person caused
the death of another human being, that the person
intended to cause that death, and that the person did so
with premeditation.
(Case No. 12-cr-00200-15, Docket No. 1451 at 46)(emphasis
added).
Hence, both the indictment and jury instructions ensured that
the jury knew the predicate offense was murder in the first degree.
See United States v. Woods, 2021 WL 4237166, at *4 (6th Cir. 2021)
(“By describing and naming the correct predicate offense, the
indictment and jury instruction left no confusion for the jury
that the predicate offense was a crime of violence.”) (United
States
v.
Nixon,
825
F.
App'x
360,
364
(6th
Cir.
2020)).
Considering the jury found Laureano-Salgado guilty on all counts,
the Jury found him guilty of first-degree murder of Pekeke, the
predicate offense and “crime of violence” object of Count 29 and
30. (Case No. 12-cr-00200-15, Docket Nos. 794 and 1205). Therefore,
Laureano-Salgado was charged with and found guilty of a “crime of
violence”
under
Section
924(c)(3)(A)’s
force
clause
and
his
Civil No. 17-1205 (RAM)
24
Section 924(c) and (j) convictions are valid. Likewise, although
not required, the indictment charged Laureano-Salgado with the
predicate offense. See United States v. Frye, 402 F.3d 1123, 1127
(11th Cir. 2005) (“[S]ection 924 does not require that a defendant
be convicted of, or even charged with, the predicate offense”).
See also United States v. Munoz-Fabela, 896 F.2d 908, 911 (5th
Cir. 1990) (“[I]t is only the fact of the offense, and not a
conviction, that is needed to establish the required predicate.”).
Further, Petitioner’s Section 924(c) and (j) convictions stem
from Count 30 of the Indictment which charged Laureano-Salgado and
his co-defendants with:
[A]iding and abetting each other and others
known and unknown, did knowingly use and carry
a firearm, as defined in Title 18, United
States Code, Section 92l(a)(3), that is, a
firearm of unknown brand, caliber, and serial
number, during and in relation to a crime of
violence, as that term is defined in Title 18,
United States Code, Section 924(c)(3), for
which they may be prosecuted in a Court of the
United States, to wit, a violation of Title
18, United States Code, Section 19 5 9(a)(1),
as charged in Count Twenty-Nine of the
Indictment,
which
is
realleged
and
incorporated by reference herein, and in the
course of that crime, the defendants did cause
the death of Christian Toledo Sanchez, a/k/a
"Pekeke," through the use of a firearm, which
killing is a murder as defined in Title 18,
United States Code, Section 1111, in that the
defendants, with malice aforethought, did
unlawfully kill Christian Toledo Sanchez,
a/k/a "Pekeke," by shooting him with the
firearm willfully, deliberately, maliciously,
and with premeditation.
Civil No. 17-1205 (RAM)
25
All in violation of Title 18, United States
Code, Sections 924(c)(l)(A), 924(j)(l), and 2.
(Case No. 12-cr-00200-15, Docket No. 196 at 53) (emphasis added).
As
seen
above,
Count
30
incorporated
Count
29
of
the
Indictment by reference and it also specifically charged LaureanoSalgado and his co-defendants with the elements constituting the
predicate offense in 18 U.S.C. § 1959(a)(1) and 2 which the Court
will not reiterate. Therefore, the record and common sense guide
the Court’s interpretation that first degree murder is a crime of
violence and that the predicate offense of Laureano-Salgado’s §
924(c) charge – murder in aid of racketeering activity - is a crime
of violence under the elements clause of § 924(c)(3)(A). See United
States
v.
Turkette,
452
U.S.
576,
580
(1981)
(stating
that
“authoritative administrative constructions should be given the
deference to which they are entitled, absurd results are to be
avoided.”); Baez-Martinez, 950 F.3d at 128 (noting that “‘in terms
of moral depravity,’ murder is often said to stand alone among all
other crimes.”); United States v. D'Amario, 412 F.3d 253, 255 (1st
Cir. 2005) (holding that courts should apply “common sense” when
analyzing criminal statutes). Lastly, other Circuit Courts which
also requires “premeditation” when sentencing for first-degree
murder have held that first degree murder is a crime of violence
when analyzing a commission of VICAR. See United States v. Mathis,
932 F.3d 242, 265 (4th Cir. 2019), cert. denied sub nom. Uhuru v.
Civil No. 17-1205 (RAM)
United
States,
140
26
S.
Ct.
639
(2019),
and
cert.
denied
sub
nom. Stokes v. United States, 140 S. Ct. 640 (2019) (applying the
categorical approach to the commission of VICAR by committing
first-degree murder under Virginia law and finding that because
“[a]
conviction
for
first-degree
murder
under
Virginia
law
requires the ‘willful, deliberate, and premeditated’ killing of
another,” then the “crime of first-degree murder under Virginia
law qualifies categorically as a crime of violence under the force
clause, and we affirm the capital defendants 'Section 924(c)
convictions.”)
D. No Certificate of Appealability Will be Issued
28 U.S.C.A. § 2253(c)(2) establishes that a District Court
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 the case at bar, the
Court will not issue a certificate of appealability because, for
the reasons discussed above, Petitioner failed to make such a
showing. See e.g., Morales Torres v. United States, 2019 WL 4744217
at *3 (D.P.R. 2019) (denying certificate of appealability in a
case dismissing Section 2255 petition because Hobbs Act Robbery is
a
predicate
clause).
crime
of
violence
under Section
924
(c)’s
force
Civil No. 17-1205 (RAM)
27
IV.
CONCLUSION
Based on the foregoing, Petitioner José Laureano-Salgado’s
Motion to Vacate, Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255 (Docket No. 1) is DENIED. Judgment of dismissal WITH
PREJUDICE will be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 30th day of September 2021.
S/ RAÚL M. ARIAS-MARXUACH
United States District Judge
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