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United States v. Acevedo

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

August 2, 2019

UNITED STATES OF AMERICA,
v.
DAVID ACEVEDO, Petitioner.

          MEMORANDUM OPINION

          Robert E. Payne, Senior United States District Judge.

         David Acevedo, a federal inmate proceeding with counsel, filed this 28 U.S.C. § 2255 Motion ("§ 2255 Motion," ECF No. 124) arguing that his conviction and sentence are invalid under Johnson v. United States, 135 S.Ct. 2551 (2015). The Government filed a Motion to Dismiss the § 2255 Motion contending that it is barred by the relevant statute of limitations. (ECF No. 130.) As discussed below, the Court finds that Acevedo's Johnson claim lacks merit and may be dismissed on that ground.

         I. FACTUAL AND PROCEDURAL HISTORY

         A grand jury returned a three-count Indictment charging Acevedo with interference with commerce by threats and violence and aiding and abetting that offense, in violation of 18 U.S.C. §§ 1951 (a) and 2 ("Hobbs Act robbery") (Count One), use and carry of a firearm during and in relation to the crime of violence as alleged in Count One and aiding and abetting that offense, in violation of 18 U.S.C. §§ 924 (c) (1) (A) and 2 (Count Two); and, stealing firearms from a licensed firearms dealer, in violation of 18 U.S.C. §§ 922 (u) and 2. (Indictment 1-2, ECF No. 1.) On June 15, 2005, Acevedo pled guilty to Counts One and Two of the Indictment. (Plea Agreement ¶ 1, ECF No. 27.) On September 20, 2005, the Court sentenced Acevedo to forty-six months of incarceration on Count One and eighty-four months of incarceration on Count Two to be served consecutively to Count One. (J. 2, ECF No. 73.)

         Acevedo filed no appeal. Counsel indicates that, on November 20, 2014, Acevedo was released into Immigrations & Customs Enforcement, where he remained as of the date of filing his § 2255 Motion. (§ 2255 Mot. 3.) Neither party indicates whether Acevedo remains in custody or whether he has been removed from the country at this juncture.[1]

         On June 9, 2016, Acevedo filed his § 2255 Motion arguing that his conviction under 18 U.S.C. § 924 (c) in Count Two must be vacated in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Thereafter, the Government moved to dismiss, arguing that the § 2255 Motion is barred by the relevant statute of limitations.

         II. ANALYSIS

         A. Timeliness Argument

         Under 28 U.S.C. § 2255 (f) (1), Acevedo was required to file any 28 U.S.C. § 2255 motion within one year after his conviction became final. Accordingly, absent a belated commencement of the limitation period, Acevedo's § 2255 Motion is untimely. Acevedo contends that he is entitled to a belated commencement of the limitation period under 28 U.S.C. § 2255 (f) (3). Acevedo was convicted of using and carrying a firearm during the commission of a crime of violence, to wit, Hobbs Act robbery and aiding and abetting that offense, in violation of 18 U.S.C. §§ 924 (c) and 2. The right which is at the heart of his argument (that the residual clause of § 924 (c) is unconstitutionally vague) simply was not a right that was announced in Johnson. Rather, the Supreme Court's holding in Johnson only addressed the residual clause of ACCA. As the Fourth Circuit has observed, although "the Supreme Court held unconstitutionally vague the [residual clause in ACCA], . . . the [Supreme] Court had no occasion to review . . . the residual clause [of § 924 (c)]." United States v. Fuertes, 805 F.3d 485, 499 n.5 (4th Cir. 2015). Thus, Acevedo's contention that § 924(c)'s residual clause is unconstitutionally vague was not a right announced by the Supreme Court in Johnson. However, the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019), [2]may call into question the timeliness of Acevedo's § 2255 Motion. The Court need not engage in further discussion of the timeliness of Acevedo's § 2255 Motion because it can be dismissed for lack of merit.

         B. Acevedo's Claim Lacks Merit.

         Acevedo's Johnson claim plainly lacks merit. See United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (noting that a district court may summarily dismiss a § 2255 motion where "files, and records 'show conclusively that the movant is not entitled to relief" (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992))). Acevedo contends that, after Johnson, the offense of Hobbs Act robbery and aiding and abetting that offense can no longer qualify as crimes of violence under 18 U.S.C. § 924(c)(3), and thus, his conviction for Count Two must be vacated.

         Title 18 U.S.C. section 924 (c) (1) (A) provides for consecutive periods of imprisonment when a defendant uses or carries a firearm in furtherance of a crime of violence. The baseline additional period of imprisonment is five years. 18 U.S.C. § 924 (c) (1) (A) (i) . If the defendant brandishes the firearm, the additional period of imprisonment increases to at least seven years. Id. § 924 (c) (1) (A) (ii) . And, if the defendant discharges the firearm, the additional period of imprisonment increases to at least ten years. Id. § 924 (c) (1) (A) (iii) .

         Until recently, the United States could demonstrate that an underlying offense constituted a crime of violence if it established that the offense was a felony and satisfied one of two requirements. Namely, the statute defines a crime of violence as any felony:

(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another ...

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