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United States v. Ojeda

United States District Court, D. Nebraska

April 26, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
COREY J. OJEDA, Defendant.

          MEMORANDUM AND ORDER

          LAURIE SMITH CAMP CHIEF UNITED STATES DISTRICT JUDGE.

         This matter is before the Court for initial review of the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion"), ECF No. 39, filed by Corey J. Ojeda (“Defendant”). For the reasons stated below, the § 2255 Motion will be summarily dismissed.

         BACKGROUND

         On February 25, 2002, Defendant pled guilty to the offenses of possession with intent to distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1) (“Count I”), and possession of a firearm during a drug trafficking crime in violation of 18 U.S.C. § 924(c) (“Count II”). Defendant received a sentence of 151 months incarceration on Count I and 60 months incarceration on Count II, to be served consecutively, followed by three years of supervised release on each count, to be served concurrently. Defendant did not appeal the conviction or sentence. ECF No. 32.

         A review of the Presentence Investigation Report (“PSR”), ECF No. 31, reveals that Defendant was sentenced as a career offender under the federal Sentencing Guidelines. United States Sentencing Commission, Guidelines Manual § 4B1.1 (Nov. 2000) (U.S.S.G.). Section 4B1.1(a) of the Guidelines confers career offender status where the defendant is being sentenced for a felony that is either a crime of violence or a controlled substance offense and the defendant also has two prior felony convictions of crimes of violence or controlled substance offenses. Id. At the time of Defendant's sentencing, § 4B1.2 defined the term “crime of violence” to include “any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that . . . otherwise involves conduct that presents a serious potential risk of physical injury to another.” U.S.S.G. § 4B1.2(a)(2) (2011) (emphasis added). The italicized language is known as the residual clause. Beckles v. United States, U.S., 137 S.Ct. 886, 890 (2017). Defendant was given career offender status due to his prior crimes of violence, i.e., burglary and first-degree assault. Defendant contends that his burglary conviction fell within the scope of the residual clause of § 4B1.2 of the Guidelines. U.S.S.G. § 4B1.2(a)(2).

         In Johnson v. United States, the Supreme Court held the residual clause[1] of the Armed Career Criminal Act of 1984 (the “ACCA”), 18 U.S.C. §924(e)(1), which is identical to the residual clause in Guidelines § 4B1.2(a)(2), to be unconstitutionally vague, and therefore void pursuant to the Due Process Clause of the Fifth Amendment. 576 U.S., 135 S.Ct. 2551 (2015). In Welch v. United States, the Supreme Court held “that Johnson is retroactive in cases on collateral review[.]” 578 U.S., 136 S.Ct. 1257 (2016). Citing Johnson, the Defendant argues that the identically worded residual clause of Guidelines § 4B1.2(a)(2) is unconstitutionally vague and that his sentence should be vacated and corrected.

         The Supreme Court recently held that the advisory Sentencing Guidelines, including the residual clause of § 4B1.2(a), are not subject to vagueness challenges under the Due Process Clause. Beckles v. United States, U.S., 137 S.Ct. 886 (2017). Defendant contends that because the Supreme Court limited its holding in Beckles to the advisory Sentencing Guidelines, and because he was sentenced in 2004 when the Guidelines were mandatory, [2] Beckles does not bar his due process vagueness challenge to the mandatory Sentencing Guidelines. Accordingly, he asks the Court to vacate and modify his sentence in light of Johnson.

         STANDARD OF REVIEW

         Section 2255(b) requires a court to serve notice of the § 2255 motion upon the United States attorney, grant a prompt hearing, and make a determination on the motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b).

         Specifically, Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a defendant's § 2255 motion. Rule 4(b) states:

         The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         Thus, the reviewing court may summarily dismiss the § 2255 motion if it plainly appears the movant is not entitled to relief.

         DISCUSSION

         I. The Supreme Court's holding in Beckles Does Not Bar ...


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