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United States v. Rosario-Calderon

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

November 26, 2017

UNITED STATES OF AMERICA
v.
CARLOS R. ROSARIO-CALDERON, Petitioner.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge.

         Carlos R. Rosario-Calderon, a federal inmate proceeding with counsel, submitted this motion under 28 U.S.C. §2255 ("§ 2255 Motion, '7 ECF No. 31) to vacate, set aside, or correct his sentence. Rosario-Calderon asserts that, in light of the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his enhanced sentence for possession of a firearm under the United States Sentencing Guidelines ("USSG") is unconstitutional.[1] However, Rosario-Calderon is incorrect.

         Rosario-Calderon was convicted of Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g)(1) and was sentenced under USSG § 2K2.1(a)(1), which provided for a base offense level of 24 "if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense." U.S. Sentencing Guidelines Manual § 2K2.1(a)(2) (U.S. Sentencing Comm'n 2014). At the time of Rosario-Calderon's sentencing, USSG § 2K2.1(a)(1)'s corresponding commentary stated, "'Crime of violence' has the meaning given that term in §4B1.2(a) and Application Note 1 of the Commentary to § 4B1.2." Id. § 2K2.1(a) (1) cmt. n.1. USSG 4B1.2(a) defined "crime of violence" as any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-

(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 4B1.2(a) (emphasis added). USSG § 4B1.2(a)(2) therefore contains a residual clause that is identical to the one at issue in Johnson.

         Rosario-Calderon argues that his Presentence Investigation Report ("PSR") reveals that at the time of his sentencing, he had three prior convictions that may have qualified as predicate crimes of violence under USSG § 4B1.2(a)(2)'s residual clause. (§ 2255 Mot. 2.) These three prior convictions were Breaking and Entering, Robbery, and Grand Larceny from the Person. (Id. (citing PSR ¶ 31).) Rosario-Calderon contends that because his PSR does not specify which of his prior convictions were considered predicate crimes of violence under the residual clause, any sentencing enhancement based on USSG § 4B1.2(a)(2) is unconstitutional under Johnson. (Id.)

         However, "[r]ecently, the Supreme Court concluded that the Guidelines are not subject to a vagueness challenge under the Due Process Clause. . . . Johnson's vagueness holding does not apply to the residual clause in [USSG] § 4B1.2 (a) (2) ." United States v. Lee, 855 F.3d 244, 246-47 (4th Cir. 2017) (citation omitted). Thus, Rosario-Calderon's claim lacks merit.[2] See United States v. Hornsby, No. 2:14CR00012, 2017 WL 2484220, at *1 (W.D. Va. June 8, 2017) (concluding petitioner was not entitled to relief under Johnson because her sentence was enhanced under USSG § 2K2.1(a)(3) and not the ACCA). Accordingly, the Government's Motion to Dismiss (ECF No. 36) will be granted. The § 2255 Motion (ECF No. 31) will be denied. The action will be dismissed, and the Court will deny a certificate of appealability.

         The Clerk is directed to send a copy of this Memorandum Opinion to Rosario-Calderon and counsel of record.

         It is so ORDERED.

---------

Notes:

[1] As the Supreme Court has noted,

[u]nder the Armed Career Criminal Act ["ACCA"] of 1984, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if he has three or more previous convictions for a "violent felony, " a term defined to include any felony that "involves conduct that presents a serious ...

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