Wirichaga-Landavazo v. USA
MEMORANDUM DECISION AND ORDER denying Petitioner's 1 Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Ted Stewart on 1/3/2017. (eat)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION TO CORRECT SENTENCE
UNDER 28 U.S.C. § 2255
UNITED STATES OF AMERICA,
Civil Case No. 2:16-CV-727 TS
Criminal Case No. 2:14-CR-517 TS
District Judge Ted Stewart
This matter is before the Court on Petitioner’s Motion to Correct Sentence Under 28
U.S.C. § 2255. For the reasons discussed below, the Court will deny the Motion and dismiss this
On October 8, 2014, Petitioner was charged with conspiracy to distribute
methamphetamine, possession of methamphetamine with intent to distribute, using and carrying
a firearm during and in relation to drug trafficking crime, felon in possession of a firearm and
ammunition, and re-entry of a previously removed alien. Petitioner pleaded guilty to conspiracy
to distribute methamphetamine and re-entry of a previously removed alien. Petitioner was
sentenced on May 5, 2015, to a term of 180 months’ imprisonment pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C).
Petitioner filed the instant Motion on June 27, 2016. Petitioner argues that his sentence is
unconstitutional in light of Johnson v. United States. 1
135 S. Ct. 2551 (2015).
The Supreme Court in Johnson considered the validity of the Armed Career Criminal Act
(“ACCA”). The ACCA, 18 U.S.C. § 924(e), provides for increased penalties for a person who
violates 18 U.S.C. § 922(g) and has three previous convictions for a violent felony or a serious
drug offense. The Act defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year, or any act
of juvenile delinquency involving the use or carrying of a firearm, knife, or
destructive device that would be punishable by imprisonment for such term if
committed by an adult, 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
. . . .2
The first part of the definition—“has as an element the use, attempted use, or threatened
use of physical force against the person of another”—is known as the force clause. The second
portion—“burglary, arson, extortion, or crimes involving the use of explosives”—is the
enumerated offenses provision. The last clause—crimes that otherwise involve conduct that
presents a serious potential risk of physical injury to another—is called the residual clause. In
Johnson, the Supreme Court held that the residual clause was unconstitutionally vague. 3
However, the Court stated that “[t]oday’s decision does not call into question application of the
Act to the four enumerated offenses, or the remainder of the Act’s definition of a violent
18 U.S.C. § 924(e)(2)(B).
Johnson, 135 S. Ct. at 2563.
felony.” 4 The Supreme Court in Welch v. United States, 5 held that Johnson’s constitutional
holding applied retroactively to cases on collateral review.
Petitioner argues that his sentence is unconstitutional in light of Johnson. But, simply
stated, Johnson does not apply. Petitioner did not receive an enhancement that is called into
question by that case. Petitioner received a two-level enhancement for possession of a dangerous
weapon and a four-level enhancement for being a organizer or leader. Neither enhancement is
implicated by Johnson’s invalidation of the residual clause of the ACCA.
Petitioner asserts that he should not have received an enhancement under Guideline
Section 2L1.2(b)(1)(A)(ii). 6 This provision provides for an enhanced sentence if a defendant has
a prior “crime of violence.” Even assuming this provision is invalid under Johnson, Petitioner
did not receive an enhancement under this section.
Petitioner also appears to challenge the criminal history points added as a result of prior
convictions for theft and forgery. This points were applied as a result of applying Guideline
Section 4A1.1(a). This section does not contain any language resembling the residual clause that
was found unconstitutional by Johnson. Therefore, Johnson provided Petitioner no relief.
It is therefore
ORDERED that Petitioner’s Motion to Correct Sentence Under 28 U.S.C. § 2255
(Docket No. 1 in Case No. 2:16-CV-727 TS) is DENIED. It is further
136 S. Ct. 1257 (2016).
Petitioner cites to USSG § 2L1.2(b)(1)(A)(iii), but the Court presumes he meant §
ORDERED that, pursuant to Rule 8(a) of the Rules Governing § 2255 Cases, an
evidentiary hearing is not required. It is further
ORDERED that pursuant to Rule 11(a) of the Rules Governing § 2255 Cases, the Court
DENIES Petitioner a certificate of appealability.
The Clerk of Court is directed to close Case No. 2:16-CV-727 TS forthwith.
DATED this 3rd day of January, 2017.
BY THE COURT:
United States District Judge
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