Rubino-Zamora v. USA
Filing
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MEMORANDUM OPINION AND ORDER. (Ordered by Judge Ed Kinkeade on 8/29/2016) (twd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LEOPOLDO RUBINO-ZAMORA,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.
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3:16-CV-1890-K
(3:11-CR-223-K-2)
MEMORANDUM OPINION AND ORDER
Movant Leopoldo Rubino-Zamora, a federal prisoner, proceeding pro se, has
moved, under 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. See Dkt.
Nos. 5 & 6. Because it plainly appears, for the reasons explained below, that
Rubino-Zamora is not entitled to relief, the Court DISMISSES his motion pursuant
to Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States
District Courts.
Applicable Background
Rubino-Zamora pleaded guilty to one count of conspiracy to possess with the
intent to distribute and distribution of a Schedule II controlled substance, in violation
of 21 U.S.C. §§ 846 and 841(a)(1) and (b)(1)(A)(viii). Although his advisory guideline
sentence, calculated pursuant to the 2011 Sentencing Guidelines – based on a total
offense level of 39 and criminal history category of I – was 262 to 327 months, the
Court sentenced Rubino-Zamora below the advisory guideline range – to 132 months’
imprisonment.
While Rubino-Zamora’s criminal history category was I, the base offense level
for the drug-conspiracy conviction was determined by the amount of drugs for which
he was held accountable, and his offense level was enhanced because, among other
specific offense characteristics, several firearms were found at each of the stash houses
associated with the conspiracy. See U.S.S.G. § 2D1.1(b)(1) (“If a dangerous weapon
(including a firearm) was possessed, increase by 2 levels.”).
Through the current motion, Rubino-Zamora seeks a reduction to his sentence
based on a belief that Johnson v. United States, 135 S. Ct. 2551 (2015) impacts the
above-mentioned dangerous-weapon enhancement. See, e.g., Dkt. No. 5 at 4 (“the
defendant is just looking for a reduction of sentence on the portion of possession of a
firearm”).
Legal Standard and Analysis
In Johnson, the United States Supreme Court held “that imposing an increased
sentence under the residual clause of the Armed Career Criminal Act” (“ACCA”), 18
U.S.C. § 924(e)(2)(B)(ii) – under which “violent felony” includes any felony that
“involves conduct that presents a serious potential risk of physical injury to another” –
“violates the Constitution’s guarantee of due process,” 135 S. Ct. at 2563. The
Supreme Court has made that decision retroactively applicable. See Welch v. United
States, 136 S. Ct. 1257 (2016).
Whether Johnson should be expanded to other criminal statutes containing
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similarly worded language – and even to similar language in the advisory sentencing
guidelines – is certainly an issue before many courts at the moment. See, e.g., In re Fields,
___ F.3d ____, No. 16-50521, 2016 WL 3383460 (5th Cir. June 17, 2016) (per
curiam) (refusing to authorize a successive, Johnson-based challenge “to the differently
worded ‘crime of violence’ definition in” 18 U.S.C. § 924(c)(3)(B)); Beckles v. United
States, 136 S. Ct. 2510 (2016) (granting petition for certiorari to address, among other
things, whether Johnson applies retroactively to collateral cases challenging federal
sentences enhanced under the residual clause in U.S.S.G. § 4B1.2(a)(2) and whether
Johnson’s constitutional holding applies to the residual clause in Section 4B1.2(a)(2),
thereby rendering challenges to sentences enhanced under it cognizable on collateral
review); United States v. Gonzalez-Longoria, ___ F.3d ____, No. 15-40041, 2016 WL
4169127 (5th Cir. Aug. 5, 2016) (en banc) (holding “that 18 U.S.C. § 16(b) is not
unconstitutionally vague” in light of Johnson).
Nevertheless, the Court rejects the expansion of Johnson to Section 2D1.1(b)(1)
and adopts the reasoning of other courts that also have rejected such an extension of
Johnson’s holding:
Johnson and its progeny have no effect on the two point enhancement for
possessing a firearm in U.S.S.G. § 2D1.1(b)(1).... Johnson serves to
invalidate a portion of the definition of a “crime of violence” as utilized
in the ACCA. Defendant argues that the reasoning in Johnson should
apply to the sentencing guidelines; however, even if it did, it would not
serve to invalidate the specific two point enhancement that affected
Defendant’s sentence. While Defendant is correct that some courts have
applied Johnson reasoning beyond the ACCA, for example to the residual
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clause of the career offender portion of the sentencing guidelines or to the
residual clause in § 924(c), there is simply no like reasoning that would
invalidate the two level enhancement for possessing a dangerous weapon.
U.S.S.G. § 2D1.1(b)(1) does not have a residual clause that could be held
unconstitutionally vague; instead, it clearly lays out which convictions
(all related to drug offenses) could receive the two point enhancement for
possessing a dangerous weapon. Therefore, Johnson cannot serve to
invalidate the enhancement received by Defendant.
United States v. Beckham, Cr. No. 0:10-1212-CMC, 2016 WL 3941021, at *2 (D.S.C.
July 21, 2016); see United States v. Munoz, ___ F. Supp. 3d ____, Case Nos. 09-cr-0109
(27) (JNE) & 16-cv-2444 (JNE), 2016 WL 4059225, at *3 (D. Minn. July 19, 2016)
(“It is difficult to see what Johnson has to do with § 2D1.1(b)(1). Again, Johnson
invalidated the phrase ‘otherwise involves conduct that presents a serious potential
risk of physical injury to another’ as used in the ACCA. That phrase does not appear in
§ 2D1.1(b)(1). The only connection between Johnson and § 2D1.1(b)(1) is that both
concern unlawful possession of a firearm. But this glancing similarity, taken alone,
does not transform Ochoa Munoz’s claim that the Court should not have applied §
2D1.1(b)(1) at sentencing into a claim under the new rule established by Johnson.”); see
also, e.g., Carrasco v. United States, ___ F. Supp. 3d ____, 01-CR-0021 (VM) &
16-CV-3952 (VM), 2016 WL 3275397, at *2 (S.D.N.Y. June 3, 2016); United States v.
Ramos, Crim. A. No. 06-275-KD, 2016 WL 1611483, at *1-*2 (S.D. Ala. Apr. 21,
2016); Heard v. United States, Nos. 8:16-cv-1475-T-30AAS & 8:12-cr-52-T-30AAS,
2016 WL 3219718, at *1 (M.D. Fla. June 10, 2016); United States v. Romero, Case No.
05-20017-02-JWL, 2016 WL 4128418, at *1 (D. Kan. Aug. 3, 2016).
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Conclusion
For the foregoing reasons, “it plainly appears … that the moving party is not
entitled to relief.” RULES GOVERNING SECTION 2255 PROCEEDINGS
FOR THE
UNITED
STATES DISTRICT COURTS, Rule 4(b). The Court therefore summarily DISMISSES the
motion to vacate, set aside, or correct sentence brought pursuant to 28 U.S.C. § 2255.
SO ORDERED.
Signed August 29th, 2016.
ED KINKEADE
UNITED STATES DISTRICT JUDGE
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