Ortiz-Brooks v. USA

Filing 15

OPINION AND ORDER denying 1 MOTION to Vacate, Set Aside or Correct Sentence (2255). Judgment of dismissal is to be entered accordingly. Signed by Judge Daniel R. Dominguez on 12/3/2019. (CBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
KEVIN ORTIZ-BROOKS,
Petitioner,

CIVIL NO. 17-1376 (DRD)
(Criminal Case No. 12-560 (DRD))

v.
UNITED STATES OF AMERICA,
Defendant.

OPINION AND ORDER
Pending before the Court is Kevin Ortiz-Brook’s (hereinafter “Petitioner” or “OrtizBrooks”) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person
in Federal Custody (Dkt No. 1). Respondent, the United States of America (hereinafter, the
“Government”) filed its respective response in opposition thereto. (Dkt. No. 14).
For the reasons stated herein, the Court DENIES Petitioner’s Motion to Correct Sentence
Under 28 U.S.C. § 2255. (Dkt. No. 1)
I.

FACTUAL BACKGROUND

On July 19, 2012, Petitioner was charged with aiding and abetting a carjacking in violation
of 18 U.S.C. §2119 (1), (hereinafter “Count One”) and aiding and abetting in the possession of a
firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924 (c)(1)(A) (hereinafter
“Count Two”). See Crim No. 12-560 at Dkt. No. 15 Indictment.
Petitioner pled guilty to Counts One and Two of the Indictment. See Crim No. 12-560 at
Dkt. No. 105 Second Amended Judgment. Accordingly, on June 4, 2013, Petitioner was sentenced
to sixty-six (66) months as to Count One, and eighty-four (84) months as to Count Two, to be
served consecutively with each other for a total term of imprisonment of one hundred and fifty

(150) months. Id. Upon release from imprisonment, the Petitioner would be on supervised release
for a term of three (3) years as to Count One, and five (5) years as to Count Two, to be served
concurrently with each other. Id.
On March 19, 2017, the Petitioner timely initiated the instant matter pursuant to 28 U.S.C.
§ 2255 (Dkt. No. 1) claiming that the Supreme Court’s decision in Johnson v. United States, 135
S. Ct. 2551 (2015) (hereinafter, Johnson II) struck down for vagueness the residual clause of the
Armed Career Criminal Act (hereinafter ACCA), 18 U.S.C. § 924(e)(2)(B)(ii). The same opinion
invalidates the similarly worded residual clause of 18 U.S.C. § 924(c)(3)(B). See Dkt. No. 1. On
July 12, 2018, the Government filed a Response (Dkt. No. 14) in opposition thereto, arguing that
§ 924(c)(3)(B) (hereinafter, “§ 924’s residual clause”) is not unconstitutionally vague and that, in
the alternative, Count Two should subsist because it falls under the § 924(c)(3)(A) (hereinafter, “§
924’s force clause”).
II.

ANALYSIS

Under § 2255, a prisoner prevails on his motion to vacate, set aside, or correct a sentence
if the petitioner proves one of the following: (i) “the sentence was imposed in violation of the
Constitution or laws of the United States,” (ii) “the court was without jurisdiction to impose such
sentence,” (iii) “the sentence was in excess of the maximum authorized by law,” or (iv) the
sentence “is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Petitioner’s § 2255 action is based on his contention that (1) § 924(c)’s residual clause is
unconstitutionally vague after Johnson II; and (2) that the crime of violence charged along with
violations to § 924 (c), that is, aiding and abetting a carjacking, fails to categorically qualify as a
crime of violence under §924(c)’s force clause.

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Petitioner relies on Welch, wherein the Court held that Johnson constitutes “a substantive
decision and so has retroactive effect in cases on collateral review.” Welch v. United States, 136
S. Ct. 1257, 1265 (2016). Johnson II, in turn, held the residual clause of the ACCA, 18 U.S.C.
§ 924(e)(2)(B), was unconstitutionally vague. Johnson v. United States, 135 S. Ct. 2551 (2015).
The Supreme Court found the residual clause left “grave uncertainty about how to estimate the
risk posed by a crime” because it tied “the judicial assessment of risk to a judicially imagined
‘ordinary case’ of a crime, not to real-world facts or statutory elements.” Id. at 2253. It also found
the clause left “uncertainty about how much risk it takes for a crime to qualify as a violent felony.”
Id. at 2254. Petitioner sustains that these two holdings apply to his conviction under § 924(c) for
aiding and abetting in a carjacking.
Recently, the Supreme Court determined that § 924(c)’s residual clause, which defined a
crime of violence as “that by its nature, involv[ing] a substantial risk that physical force against
the person or property of another may be used in the course of committing the offense”,1 “provides
no reliable way to determine which offenses qualify as crimes of violence and thus is
unconstitutionally vague”. United States v. Davis, 139 S. Ct. 2319, 2324 (2019). Rejecting the
Government’s proposed use of a case-specific approach,2 and noting that “there’s no material
difference in the language or scope of [the residual clauses in 18 U.S.C. § 16 and 18 U.S.C. §
924(c)(3)]”,3 the Supreme Court adopted its holdings from both Johnson II and Dimaya,4 and
upheld the Fifth Circuits’ “conclusion that § 924(c)(3)(B) is unconstitutionally vague.” Davis, 139
S. Ct. at 2336.

1

18 U.S.C. § 924(c)(3)(B).
See Id. at 2329-30.
3
Id. at 2326.
4
In Sessions v. Dimaya, 137 S.Ct. 1204 (2018), the Supreme Court held that the residual clause contained in 18
U.S.C. § 16 was unconstitutionally vague.
2

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Pursuant to Section 924(c), it is a crime for “any person, who during and in relation to any
crime of violence . . . use[] or carr[y] a firearm, or who in furtherance of any such crime possesses
a firearm[.]” 18 U.S.C. § 924(C)(1)(A). Further, Section § 924(c) defines a crime of violence under
the force clause as “an offense that is a felony and has as an element the use, attempted use, or
threatened use of physical force against the person or property of another.” 18 U.S.C.
§924(c)(3)(A).
The First Circuit has recently held that aiding and abetting a Hobbs Act robbery is a crime
of violence under § 924(c)’s force clause, while holding that an aider and abettor is punishable as
a principal, and thus no different for purposes of the categorical approach than one who commits

the substantive offense. See United States v. García-Ortiz, 904 F.3d 102 (2018). Thus, for the
purposes of the instant Petition, Ortiz-Brooks is punishable as a principal and no different from
the defendant who committed the substantive offense.
The First Circuit further explained that,
To assess whether a predicate crime qualifies as a ‘crime of violence’ under the force clause
of § 924(c), ‘we apply a categorical approach. That means we consider the elements of the
crime of conviction, not the facts of how it was committed, and assess whether violent
force is an element of the crime.
United States v. Cruz-Rivera, 904 F.3d 63, 66 (1st Cir 2018)(quoting United States v. Taylor, 848
F.3d 476, 491 (1st Cir.), cert. denied, ____ U.S. ____, 137 S. Ct. 2255, 198 L.Ed.2d 689 (2017).
Moreover, the federal carjacking statute provides that “[w]hoever, with the intent to cause
death or serious bodily harm takes a motor vehicle that has been transported, shipped, or received
in interstate or foreign commerce from the person or presence of another by force and violence or
by intimidation, or attempts to do so, shall . . . be fined under this title or imprisoned not more than
15 years or both.” 18 U.S.C. §§ 2119, 2119(1) (Emphasis ours). Thus, the elements of the offense
of carjacking under § 2119 require that the Government prove that the defendant committed said
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offense “with the intent of causing death or serious bodily harm”. See Id. Petitioner contends that
the aforementioned statute does not satisfy § 924(c)(3)(A)’s force clause because “(1) the offense
can be committed by intimidation, which does not require violent force, (2) aiding and abetting
does not require the use of violent force, and (3) the statute is indivisible, meaning we must
presume the most innocent conduct proscribed by the federal carjacking statute formed the basis
of the conviction.” (Dkt. No. 1 at pp. 11-14)
Herein, “if this matter had proceeded to trial, the United States would have presented the
testimony of agents of the Federal Bureau of Investigations and the Puerto Rico Police Department,
and the victims, along with physical and documentary evidence. With said evidence, the
Government would have proven beyond a reasonable doubt that on or about July 11, 2012, OrtizBrooks aiding and abetting co-defendants with the intent to cause death or serious bodily harm,
did take a motor vehicle from the person or presence of EJL, that is, a 2000 Ford Explorer, bearing
license

plate

number

ECG-168,

and

Vehicle

Identification

Number

(VIN):

1FMZU62E2YUB84011. Namely, the Government would have demonstrated that Ortiz-Brooks
brandished a black colored handgun, which was used to take the motor vehicle from EJL by force,
violence, and intimidation. Furthermore, the Government would have proven that EJL was
abducted and suffered bodily injury. The Government would have also shown that the motor
vehicle has been transported, shipped, and received in interstate and foreign commerce.” See Crim
No. 12-560 Plea Agreement Statement of Facts at Dkt. No. 58 at pp. 11-12.
Herein, Petitioner pled guilty to aiding and abetting a carjacking offense and aiding and
abetting in the use of a firearm in furtherance of a carjacking offense. See Crim No. 12-560 at Dkt.
No. 105 Second Amended Judgment. Considering the elements of a carjacking offense, namely,
“whoever, with the intent to cause death or serious bodily harm takes a motor vehicle . . . from the

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person or presence of another by force and violence or by intimidation . . .”, the Court is bound to
conclude that violence is required as part of the offense. Most critical and determinative, the First
Circuit has concluded that a carjacking offense is a crime of violence under the force clause. See
United States v. Cruz-Rivera 904 F.3d at 66.
Thus, consistent with the First Circuit’s determination and regardless of the Supreme
Court’s determination in Davis, the Court finds it is irrelevant whether § 924(c)’s residual clause
is unconstitutional as the type offense committed by the petitioner causes that the crime be
considered “a crime of violence” as the federal carjacking statute contains the element of
committing the crime “with intent to cause death or bodily harm.” 18 U.S.C. § 2119 (Emphasis
ours). Petitioner effectively pled guilty in the instant case of conspiracy to take a motor vehicle
with intent to cause death or serious bodily injury. Using a “black colored handgun” and further
the “victim was abducted and suffered bodily injury.” See Crim No. 12-560 Plea Agreement
Statement of Facts at Dkt. No. 58 at p. 11.
Accordingly, the Court need not to proceed further. The Court holds that Ortiz-Brook’s
offense falls within the § 924(c) force clause. More importantly, the Defendant was found guilty
of a carjacking offense which has been consistently ruled as a “crime of violence” as said offense
requires the “intent to cause death or serious bodily harm.” See 18 U.S.C. § 2119; see also CruzRivera, 905 F.3d at 66. Thus, Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. §2255 is DENIED.
III.

CONCLUSION

For the reasons elucidated above, the Court DENIES Petitioner, Kevin Ortiz-Brook’s
Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Dkt. No. 1). Judgment of dismissal is to be entered accordingly.

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It is further ordered that no certificate of appealability should be issued in the event that
Petitioner filed a notice of appeal because there is no substantial showing of the denial of a
constitutional right within the meaning of 28 U.S.C. § 2253(c)(2).
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 3rd, day of December, 2019.

S/Daniel R. Domínguez
Daniel R. Domínguez
United States District Judge

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