Summary
rejecting Johnson claim where no ACCA enhancement applied
Summary of this case from United States v. VargasOpinion
No. 2:09-cr-00407-KJM-4
08-28-2017
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. MARTIN GARCIA-CHAVEZ, Defendant/Petitioner.
ORDER
On September 30, 2015, defendant-petitioner Martin Garcia-Chavez pled guilty to two charges: Count 1 (conspiracy to manufacture at least 1,000 marijuana plants in violation of 21 U.S.C. §§ 846, 841(a)(1)), and Count 3 (possession and discharge of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i)). ECF Nos. 15, 476.
The court held a sentencing hearing on January 20, 2016, and sentenced Garcia-Chavez to 144 months in prison, with 84 months on Count 1 and 60 months on Count 3, to run consecutively. ECF No. 515. Because Garcia-Chavez was separately charged for possession of a firearm, the court did not apply a two-level enhancements for firearm possession in calculating the guidelines range for the drug charge. ECF No. 503 at 9 (sealed Presentence Investigation Report(PSR)); see also U.S.S.G. 2K2.4, cmt. 4 ("[i]f a sentence is imposed in conjunction with a sentence for an underlying offense characteristic for possession," a weapon enhancement is not appropriate). The court imposed the statutory minimum on the firearm possession charge without any enhancements, also as provided by the guidelines. See, e.g., ECF No. 503 at 19 (PSR's review of statutory provisions).
The court also has reviewed the Statement of Reasons (SOR) it completed following sentencing, using AO Form 245B, in confirming the basis of the sentence. The SOR as a matter of course is not filed on the public docket.
Garcia-Chavez now moves to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, contending his sentence, which flowed from a firearm possession charge, is unconstitutional under Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015). Mot. at 1, ECF No. 542. For reasons explained below, the motion is DENIED.
Garcia's separate motion to vacate, set aside, or correct the same conviction, but on grounds of ineffective assistance of counsel rather than Johnson, remains pending. See ECF No. 532 at 4. The briefing schedule on the motion has been modified with moving papers now due, at the latest, in October 2017. See ECF No. 576. --------
I. DISCUSSION
Johnson held the residual clause of the Armed Career Criminal Act ("ACCA") (18 U.S.C. § 924(e)(1)), imposing a minimum 15 year sentence for individuals with three or more prior "violent felony" convictions is unconstitutionally vague and violates due process. See Johnson, 135 S. Ct. at 2557-60. The "residual clause" defined "violent felony" to include a felony that "involves conduct that presents a serious potential physical risk of physical injury to another." See id. at 2557 ("violent felony" clause rendered unconstitutionally vague because it "leaves grave uncertainty about how to estimate the risk posed by a crime."). The Supreme Court has made the Johnson decision retroactively applicable. Welch v. United States, ___ U.S. ___, 136 S. Ct. 1257, 1265 (2016). As a result, Johnson applies to cases that have become final before the new rule was announced, including cases on collateral review. Id. at 1268.
Garcia-Chavez's motion contends this court unconstitutionally applied an enhancement under the guidelines for possession of a firearm. Mot. at 1. The record belies this assertion, however, as the court did not apply an enhancement running afoul of Johnson. Rather, the court imposed a sentence after a faithful application of other provisions of the United States Sentencing Guidelines, and without referencing the ACCA. See ECF No. 503 at 9-10 (sealed presentence investigation report noting enhancement under § 2D1.1(b)(1) not applicable, while obstruction of justice enhancement applied based on § 3C1.2; firearm possession base offense level based solely on statutory penalties for a violation 18 U.S.C. § 924(c)). Johnson and its progeny thus have no effect on Garcia-Chavez's sentence. See Barajas v. United States, No. 13-0026, 2016 WL 4721481, at *2 (E.D. Cal. Sept. 8, 2016) (rejecting Johnson claim where no ACCA enhancement applied); Rubino-Zamora v. United States, 11-223, 2016 WL 4505750, at *2 (N.D. Tex. Aug. 29, 2016) (same); United States v. Johnson, No. 15-006, 2016 U.S. Dist. LEXIS 64137, *7-8, (D. Mont. May 16, 2016) (Johnson inapplicable to case when, inter alia, "[n]othing in this case involved a "residual clause" or a "crime of violence" under the ACCA). There are no grounds to reduce Garcia-Chavez's sentence based on the instant motion.
II. CONCLUSION
For the foregoing reasons, petitioner's motion is DENIED.
This order resolves ECF No. 542.
IT IS SO ORDERED. DATED: August 28, 2017.
/s/_________
UNITED STATES DISTRICT JUDGE