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United States v. Villa

United States District Court, D. Nebraska

October 20, 2016

JAMES VILLA, Defendant.


          John M. Gerrard United States District Judge

         This matter is before the Court on the motion to vacate under 28 U.S.C. § 2255 (filing 74) filed by the defendant, James Villa. The motion was timely filed less than 1 year after the Supreme Court initially recognized the right that the defendant's motion asserts. See, § 2255(f); Johnson v. United States, 135 S.Ct. 2551 (2015).

         Pursuant to Rule 8(a) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the Court "must review the answer, any transcripts and records of prior proceedings, and any materials submitted under Rule 7 to determine whether an evidentiary hearing is warranted." A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.


sThe defendant was convicted, pursuant to a guilty plea, of possession with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. § 841. Filing 61 at 1. In his plea agreement, the defendant "knowingly and expressly" waived "any and all rights to contest" his conviction and sentence, "including any proceedings under 28 U.S.C. § 2255, " except for the right to challenge his conviction and sentence "should the Eighth Circuit Court of Appeals or the United States Supreme Court later find that the charge to which the defendant is agreeing to plead guilty fails to state a crime" and the right to "seek post conviction relief based on ineffective assistance of counsel, or prosecutorial misconduct, " if the grounds for that claim could not have been known by the defendant at the time of his plea. Filing 43 at 5-6.

         The presentence report found that the defendant was a career offender under U.S.S.G. § 4B1.1. Filing 59 at 8. Specifically, the defendant had prior convictions for a controlled substance offense (a previous federal conviction for possession with intent to distribute marijuana) and a "crime of violence" as defined by U.S.S.G. § 4B1.2(a) (three Arizona state convictions for third degree burglary). Filing 59 at 8. Accordingly, the presentence report assessed the defendant's offense level at 34, which (after a reduction for acceptance of responsibility) combined with a criminal history category of VI for a Guidelines imprisonment range of 188 to 235 months' imprisonment. Filing 38 at 8, 20. The Court accepted that Guidelines range, but varied downward on the defendant's motion and imposed a below-Guidelines sentence of 164 months' imprisonment. Filing 61 at 2; filing 62 at 1, 3. Although the Court varied downward, the Court explained that it had taken into account "the underlying offenses that led to the career offender enhancement in varying slightly downward from the guidelines." Filing 62 at 3.

         After the judgment became final, the Supreme Court held in Johnson that the definition of "crime of violence" contained in 18 U.S.C. § 924(e)(2)(B) was unconstitutionally vague. 135 S.Ct. at 2563. Based on the presence of the same language in § 4B1.2(a), the defendant filed the instant § 2255 motion. Filing 74.


         The defendant's argument is twofold. First, the defendant contends that Arizona's crime of third degree burglary is only a "crime of violence" within the residual clause of § 4B1.2(a)(2)-that is, it is not a "crime of violence" within the meaning of the "elements clause" of § 4B1.2(a)(1), or an offense enumerated in § 4B1.2(a)(2). Second, the defendant contends that the residual clause of § 4B1.2(a)(2) is invalidated by Johnson, and that as a result, he is entitled to resentencing.

         The Court agrees with the defendant that Arizona third degree burglary can only be considered a "crime of violence" pursuant to the residual clause of § 4B1.2(a)(2). However, the Court disagrees with the defendant with respect to whether the residual clause is unconstitutionally vague: under binding Eighth Circuit precedent, the vagueness of a Sentencing Guideline is not a violation of a defendant's right to due process. And, the Court finds, the defendant's collateral attack is precluded by the waiver provision of his plea agreement. Accordingly, the Court will deny the defendant's § 2255 motion.

         Arizona Third Degree Burglary as "Crime of Violence" A "crime of violence, " as defined by § 4B1.2(a) at the time of the defendant's sentencing, [1] was a federal or state offense punishable by a term of imprisonment exceeding 1 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.

So, § 4B1.2(a) essentially comprised three categories of "crime of violence": the "elements clause" of § 4B1.2(a)(1), the "enumerated offenses" specifically identified in § 4B1.2(a)(2), and the "residual clause" of crimes involving "conduct that presents a serious potential risk of physical injury to another." The language of § 4B1.2(a)(2)'s residual clause was identical to the language of § 924(e)(2)(B) that the Supreme Court struck down in Johnson. So, the initial question is whether third degree burglary, under Arizona law, is a "crime of violence" under the elements clause of ยง 4B1.2(a)(1), whether it is an enumerated offense under ...

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