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United States v. Jimenez

United States District Court, W.D. Virginia, Harrisonburg Division

January 25, 2018



          Michael F. Urbanski Chief United States District Judge

         Rafael Jimenez, a federal inmate proceeding through counsel, brings this habeas corpus petition pursuant to 28 U.S.C. § 2255, asking the court to correct his sentence under the Armed Career Criminal Act ("ACCA") in light of the United States Supreme Court decision in Johnson v. United States. 135 S.Ct. 2551 (2015). ECF No. 120. Specifically, Jimenez argues that his Florida battery conviction referenced in paragraph 24 of the Presentence Investigation Report ("PSR"), ECF No. 127, no longer qualifies as a violent felony under the ACCA, leaving him without three predicate convictions needed to invoke 18 U.S.C. § 924(e)'s 180-month mandatory minimum sentence. The government agrees that Jimenez's sentence on Count Four is no longer lawful, and that he must be resentenced as to that count. The court concurs and will order that Jimenez be resentenced.


         On August 20, 2009, a federal grand jury returned an indictment charging in Count One that Jimenez and Moises Morejon conspired to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. §§ 846 & 841 (b)(1)(A). Count Four of the indictment charged Jimenez with possessing a firearm while a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On August 24, 2009, the government filed an information, pursuant to 21 U.S.C. § 851, seeking an enhanced sentence on Count One based on Jimenez's two prior Florida felony drug convictions. ECF No. 18. As a result of the filing of the § 851 notice referencing two prior felony drug convictions, Jimenez faced a statutorily mandated life sentence.

         In a Rule 11(c)(1)(C) plea agreement filed on November 10, 2009, Jimenez and the government negotiated around the mandatory life sentence. In this binding plea agreement, Jimenez agreed to plead guilty to Counts One and Four and receive a 240 month sentence. ECF No. 54. Page three of the plea agreement contains its critical terms. There, Jimenez states that "[t]he United States and I have agreed that, if I comply with the provisions of this plea agreement, including but not limited to, the requirement to truthfully testify if called as a witness, I will be incarcerated for a period of 240 months." Id. at 3. In exchange for his guilty plea and agreement to the 240 month sentence, the government agreed to withdraw its § 851 notice as to one of Jimenez's prior Florida felony drug convictions, taking the mandatory life sentence off the table. Id. The effect of the plea agreement was that Jimenez would receive the mandatory minimum sentence of 240 months set by statute for a 21 U.S.C. § 841(b)(1)(A) offense enhanced for one prior felony drug conviction.

         The court directed Probation to prepare a PSR in advance of sentencing.[1] The PSR revealed that Jimenez had a number of other prior felonies in Florida, including a 1997 i conviction for attempted robbery, a 2001 conviction for battery, and a 2003 conviction for aggravated battery. PSR, ECF No. 127, at ¶¶ 28, 29, 32. The PSR made two findings based on these convictions. First, it concluded that Jimenez's convictions for battery and aggravated battery were crimes of violence, rendering him a career offender under USSG § 4B1.1. PSR, ECF No. 127, at ¶ 24. The career offender classification increased Jimenez's base offense level under the guidelines from a level 32 to a level 37. Second, the PSR concluded that these convictions were violent felonies as defined in 18 U.S.C. § 924(e), subjecting Jimenez to a 15-year mandatory minimum sentence for his § 922(g) felon in possession conviction under the ACCA. Based on his career offender status, the PSR set Jimenez's guidelines range at 262 to 327 months, based on a total offense level of 34 and criminal history category of VI.[2] Jimenez did not object to the PSR.

         The court conducted a sentencing hearing on February 2, 2010 and sentenced Jimenez to the agreed-upon 240 month sentence. The judgment entered on February 8, 2010 set the sentence at "240 months as to count 1 and count 4 to run concurrently." Judgment, ECF No. 76, at 2. Jimenez did not appeal his conviction.

         On June 24, 2016, Jimenez filed this § 2255 motion to vacate his sentence in light of Johnson. 135 S.Ct. at 2563. In his motion, Jimenez alleged that he no longer qualifies as an armed career criminal because his prior felony conviction for attempted robbery under Florida law no long constitutes a "violent felony." Jimenez additionally seeks review of his career offender status. ECF No. 120.


         Under 28 U.S.C. § 2255, a federal inmate may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. Courts may afford relief where the petitioner proves that his sentence was "imposed in violation of the Constitution or laws of the United States." Id. § 2255(a). If the court determines the sentence was unlawfully imposed, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).

         A convicted felon found guilty of possessing a firearm faces a maximum sentence of 120 months. 18 U.S.C. § 924(a)(2). However, the ACCA provides for a mandatory minimum sentence of 180 months when a defendant was previously convicted of at least three prior serious drug offenses or violent felonies. Id. § 924(e)(1). A "violent felony" is defined as:

[A]ny crime punishable by imprisonment for a term exceeding one year.. .that- (i) has 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 ...

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