United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf Senior United States District Judge
Cervantes has filed a Motion to Vacate the Sentence pursuant to 28 U.S.C. § 2255. The Federal Public Defender has been appointed to represent Cervantes. The government has been required to respond, and the matter is now ripe for decision. I deny the motion, but grant a certificate of appealability on the three issues before me.
Those three issues are:
(1) whether Johnson v. United States, 135 S.Ct. 2551 (2015) (holding that an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s guarantee of due process) applies retroactively to the Guidelines, particularly U.S.S.G. § 2K2.1(a)(1) (2011 Guideline Manual);
(2) whether an assault by a confined person within the meaning of Neb. Rev. Stat. § 28-309(1)(c) (1997) is a crime of violence pursuant to U.S.S.G. § 2K2.1(a)(1) (setting a base offense level of 26 for unlawful possession of firearm if the defendant committed the instant offense “subsequent to sustaining at least two felony convictions of . . . a crime of violence” (emphasis added)); and
(3) whether a terroristic threat within the meaning of Neb. Rev. Stat. § 28-311.01 (2015) is a crime of violence pursuant to U.S.S.G. § 2K2.1(a)(1).
Cervantes is definitely not a choir boy. On the contrary, I believe he is a dangerous person. In the vernacular, he might even be called a “gangbanger.” (Filing No. 48 (e.g., PSR ¶¶ 10-17, ¶ 60).)
For example, and recognizing that there were no objections (Filing No. 42) to the PSR, paragraph 60 of the PSR states:
The defendant admitted past involvement with the Surenos 12 East Side Locos street gang. The Nebraska Department Corrections reported in April 2011 that “Mr. Cervantes has a moniker of Nutty or Mr. Nutty. His case manager was able to obtain a newspaper article, which stated when Mr. Cervantes attempted to leave the East Side Locos he was beaten in jail. Police were able to confirm this, as they believe his mug shot showed he had bruises. In speaking to Mr. Cervantes, he believes he will in fact have difficulty while incarcerated due to the fact that he is now an enemy of the Surenos. Staff should be cautioned as Mr. Cervantes does have a history of violent behavior towards staff and other inmates. Mr. Cervantes stated to this case manager that he would never ask for protective custody, but would instead fight to protect himself.”
On May 25, 2012, and after he entered a guilty plea, I sentenced Cervantes to 10 years in prison, which was the statutory maximum for being a felon in possession of a firearm (a sawed-off rifle). (Filing No. 46.) He had 21 criminal history points, and his Guideline range (absent the statutory maximum) was 120 to 150 months in prison. (PSR ¶ 96.)
The probation officer found that Cervantes had previously committed two crimes of violence, which raised his base offense level to 26 pursuant to U.S.S.G. § 2K2.1(a)(1) (2011 Guideline Manual). He also received a 4-level bump because the firearm involved had an altered or obliterated serial number. With acceptance of responsibility, his total offense level was 26, and his criminal history category was VI.
One of those violent crimes involved an assault by a confined person, for which Cervantes was sentenced to 24-60 months in prison consecutive to two forgery convictions. (PSR ¶ 39.) He was 19 when he committed this offense. The records from the Nebraska Department of Corrections stated that he had received 73 misconduct reports while in prison.
The other crime of violence was committed when Cervantes was 25. (PSR ¶ 42.) He received a sentence of 48 months of intensive supervision, but he failed to abide by his conditions of supervision and was ultimately sentenced to 20-60 months in prison. In that case, he threatened a woman that “Marco Torres’ ...