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United States v. Torres

United States District Court, E.D. Virginia, Alexandria Division

September 28, 2016

UNITED STATES OF AMERICA
v.
CARLOS VICTOR GALDAMEZ TORRES Criminal No. 1:14-cr-409

          MEMORANDUM OPINION

          T. S. Eilis, III United States District Judge

         On January 15, 2015, defendant pled guilty to one count of illegal reentry after removal subsequent to a conviction for an aggravated felony, in violation of 8 U.S.C. §§ 1326(a) & (b)(2). On April 17, 2015, defendant was sentenced to a term of 30 months' imprisonment. Defendant's proper sentence was adjudged, in part, by reference to United States Sentencing Guideline ("U.S.S.G.") § 2L1.2(b)(1)(A)(ii). Almost two years later, defendant, proceeding pro se, has filed a motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence imposed on him two years ago on the ground that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), entitles him to resentencing. Defendant asserts that Johnson operates to invalidate defendant's sentence enhancement calculated pursuant to U.S.G.G. § 2L1.2(b)(1)(A)(ii). The government disagrees, contending that defendant's motion is barred as untimely, and that in any event, the Supreme Court's decision in Johnson is inapposite in the context of § 2L1.2(b)(1)(A)(ii).

         Because the matter has been fully briefed and the facts and law are fully set forth in the existing record, neither oral argument nor an evidentiary hearing would aid the decisional process.[1] Accordingly, the matter is now ripe for disposition. For the reasons stated below, defendant's motion must be denied.

         I.

         According to defendant's sworn Statement of Facts submitted as part of his plea agreement, defendant is a native and citizen of El Salvador with no valid claim to United States citizenship or lawful status in the United States. On or about August 5, 2005, defendant was convicted in California of second degree robbery, in violation of California Penal Code § 211. Following a two-year sentence for committing the robbery, defendant was removed from the United States to El Salvador.

         Following his removal from the United States, defendant again illegally reentered the United States. On this occasion, defendant was found in Herndon, Virginia and pled guilty to an indictment charging him with illegally reentering this country subsequent to an aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a) & (b)(2). Defendant was sentenced to a prison term of one year and a day. After serving this sentence, defendant again was removed to El Salvador on March 30, 2011.

         After this removal-his second-defendant once again illegally reentered the United States. This time, defendant was arrested in Loudoun County, Virginia for giving false information to law enforcement, in violation of Virginia Code § 19.2-82.1. On October 23, 2014, defendant pled guilty to and was convicted of that offense, and defendant was subsequently transferred to federal immigration authorities on October 27, 2014. Defendant was charged a second time of illegally reentering this country subsequent to an aggravated felony conviction, in violation of 8 U.S.C. §§ 1326(a) & (b)(2). On January 15, 2015, defendant pled guilty to this count and, on April 17, 2015, received a sentence of 30 months' imprisonment and a supervised release term of three years.

         To adjudge defendant's proper sentence, the Court referenced, in part, a Presentence Investigation Report ("PSIR") and the relevant Sentencing Guideline, § 2L1.2(b)(1)(A)(ii). Section 2L1.2(b)(1)(A)(ii) provides for a base offense level enhancement if defendant "previously was deported ... after... a crime of violence."[2] Specifically, the PSIR reflected that defendant's base offense level was 8, which was enhanced 16 levels pursuant to § 2L1.2(b)(1)(A)(ii) based on defendant's conviction for second degree robbery. The PSIR also reflected a three-level reduction for defendant's acceptance of responsibility; as a result, the PSIR determined that defendant's adjusted offense level was 21, and the Guidelines range was 57-71 months' imprisonment. Thus, defendant's sentence of 30 months' imprisonment was a variance from the Guidelines range. Defendant's conviction and sentence became final that same day, April 17, 2015.

         On June 26, 2015, approximately six months after defendant's sentence was imposed, the Supreme Court issued its decision in Johnson v. United States, 135 S.Ct. 2551 (2015), addressing the definition of "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Specifically, the Supreme Court in Johnson held that the ACCA "residual clause" in § 924(e)(2)(B)(ii) defining a "violent felony" as including an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" is unconstitutionally vague, and therefore that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." 135 S.Ct. at 2563. Thereafter, on April 18, 2016, the Supreme Court held that Johnson announced a new "substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136 S.Ct. 1257, 1268 (2016).

         On June 27, 2016, more than a year after his judgment of conviction and sentence became final, defendant filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed on him for his conviction pursuant to §§ 1326(a) & (b)(2) on the ground that the Supreme Court's decision in Johnson operates to invalidate his sentencing enhancement.[3] Specifically, defendant contends that his 16-level enhancement pursuant to § 2L1.2(b)(1)(A)(ii) is infirm because Johnson's reasoning with respect to the ACCA residual clause renders invalid § 2L1.2(b)(1)(A)(ii)'s definition of a "crime of violence."

         On July 15, 2016, the government filed a response, contending that defendant's § 2255 motion is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255(f). The government further argued that Johnson has no application to defendant's case, because whereas Johnson invalidated the ACCA residual clause, § 2L1.2(b)(1)(A)(ii) has no such residual clause. Moreover, the government contended that defendant's predicate robbery conviction constitutes "robbery" or "extortion" as enumerated in § 2L1.2(b)(I)(A)(ii), and thus defendant's conviction would not rely on a residual clause even if one were present in the Guideline.

         II.

         Defendant's § 2255 motion is both untimely and meritless. Put simply, Johnson has no application to defendant's conviction or sentencing. The Supreme Court's holding in Johnson was limited to the ACCA residual clause and did not address the U.S.S.G., let alone § 2L1.2's definition of a "crime of violence." Johnson, 135 S.Ct at 2563. Furthermore, Johnson is inapposite here because § 2L1.2(b)(1)(A)(ii) does not contain a residual clause; rather, defendant's predicate offense for the 16-level enhancement--second degree robbery in violation of California Penal Code § 211-is categorically a "crime of violence" pursuant to § 2L1.2. See. e.g., United States v. Castillo,811 F.3d 342 (10th Cir. 2015) (§ 211 robbery constitutes "robbery" as enumerated in U.S.S.G. § 2L1.2); United States v. Dixon,805 F.3d 1193, 1196 (9th Cir. 2015) ("[Section] 211 is categorically a 'crime of violence' under U.S.S.G. § 2L1.2 because, in all its applications ... § 211 always constitutes either generic robbery or generic extortion, both of ...


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