Castillo v. United States

• Decision Date: 24 March 2020
• Docket Number: 3:16-cv-431-RJC,3:08-cr-134-RJC-15
• Court: U.S. District Court — Western District of North Carolina
• Parties: CESAR YOALDO CASTILLO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CESAR YOALDO CASTILLO, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

3:16-cv-431-RJC

3:08-cr-134-RJC-15

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NORTH CAROLINA CHARLOTTE DIVISION

March 24, 2020

ORDER

THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), in which he raises a claim pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). The Government has filed a Motion to Dismiss, (Doc. No. 12).

I. BACKGROUND

Petitioner was one of 26 individuals charged in a 70-count Third Superseding Indictment relating to an MS-13 gang RICO conspiracy. See (3:08-cr-134, Doc. No. 623). The charges pertaining to Petitioner are: Count (1), conspiracy to commit racketeering; Count (26), accessory after the fact to murder (18 U.S.C. §§ 3, 2); Count (35) assault with a dangerous weapon in aid of racketeering activity and aiding abetting the same by "unlawfully and knowingly assault[ing] Victim No. 2 with a dangerous weapon, that being a firearm..." on or about February 3, 2008 "in violation of North Carolina law, Gen. Stat. § 14-32" (18 U.S.C. § 1959(a)(3) and 2); Count (36), use and carrying of a firearm during and in relation to a crime of violence (Count 35) on February 3, 2008 (18 U.S.C. § 924(c)); Count (37), assault with a dangerous weapon in aid of racketeering activity and aiding abetting the same by "unlawfully and knowingly assault[ing] Victim No. 3 with a dangerous weapon, that being a firearm..." on February 3, 2008 "in violation of North Carolina law, N.C Gen. Stat. § 14-32" (18 U.S.C. §§ 1959(a)(3), 2); Count (38), use and carrying of a firearm during and in relation to a crime of violence (Count 37) on February 3, 2008 (18 U.S.C. § 924(c)); Count (39), assault with a dangerous weapon in aid of racketeering activity and aiding and abetting the same by "knowingly and unlawfully assault[ing] Victims No. 4, 5, and 6 with a dangerous weapon, that being a firearm," on February 16, 2008 "in violation of North Carolina law, N.C. Gen. Stat. § 14-32" (18 U.S.C. § 1959(a)(3) and 2); Count (40), using and carrying a firearm during and in relation to a crime of violence (Count 39) on February 16, 2008 (18 U.S.C. § 924(c)); Count (46), Hobbs Act robbery conspiracy (18 U.S.C. § 1951); and Count (47), attempted Hobbs Act robbery (18 U.S.C. § 1951 and 2). (3:08-cr-134, Doc. No. 623).

Petitioner pled guilty to Counts (1), (26),¹ (35), (36), (37), (39), and (40) and "admit[ted] to being in fact guilty as charged in those counts."² (Id., Doc. No. 759 at 1). As part of his guilty plea, Petitioner waived his direct appeal and post-conviction rights except for claims of prosecutorial misconduct and ineffective assistance of counsel. See (Id., Doc. No. 759 at 6). Petitioner agreed that, "should he file a motion to withdraw his guilty plea after it has been accepted ..., such action will be considered a material breach of the terms of this plea agreement and, should the defendant be unsuccessful in his motion to withdraw his plea, the United States will be relieved of all its obligations under this plea agreement but defendant will not be allowed to withdraw from this plea agreement and will still be bound by its terms." (Id., Doc. No. 759 at 6). "[A]ny breach of the Plea Agreement ... will allow the United States, at its sole discretion, to withdraw from its obligations under the Plea Agreement. in such event, the United States will be free to proceed on any properly-filed pending, superseding, or additional charges, including any charges dismissed pursuant to the Plea Agreement." (Id., Doc. No. 759 at 9).

The Presentence Investigation Report ("PSR") scored the combined adjusted offense level as 24 after applying the multiple-count adjustment. (Id., Doc. No. 1295 at ¶ 24). Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 21. (Id., Doc. No. 1295 at ¶¶ 98-99). No Chapter Four enhancement was applied. (Id., Doc. No. 1295 at ¶ 97). The PSR's criminal history section indicates that Petitioner was charged with "Assault with Deadly Weapon Intent to Kill, Inflict Serious Injury" for the February 16, 2008 vehicle chase and shooting in North Carolina Superior Court case number 08CRS215706, which was dismissed on August 7, 2008 because "[t]hese charges are part of the instant federal criminal case." (Id., Doc. No. 1295 at ¶ 116). Petitioner had a total of six criminal history points and a criminal history category of III. (Id., Doc. No. 1295 at ¶¶ 109-110). The resulting advisory guideline range was 46 to 57 months' imprisonment plus mandatory consecutive sentences of not less than 10 years for Count (36) and not less than 25 years for Count (40). (Id., Doc. No. 1295 at ¶¶ 133-34).

At the sentencing hearing, the parties stipulated to the existence of a factual basis to support the plea. (Id., Doc. No. 1560 at 3). Defense counsel agreed that the Court can rely on the offense conduct set forth in the PSR. (Id., Doc. No. 1560 at 3). The PSR describes the conduct underlying the VICAR and § 924(c) offenses as follows:

On February 3, 2008, at approximately 1:21 am, Castillo ... and other MS-13 members, brandished firearms and started firing into a crowd following an argument with security at the Gold Palacios Club (or Five Star) located at 6736 North Tryon Street, Charlotte. The argument ensued when a security guard for the club told the group they could not enter with an open beer bottle. At first security thought there was an English/Spanish language issue. So the owner of the club ... came outside and also spoke with the group in Spanish. It became obvious at that point that the group understood the instructions of the security guard, but had chosen to ignore them. They said, "We are Mara Salvatrucha, and we will kill all of you." Witnesses indicate the MS-13 group began firing shots. Castillo later admitted he had a handgun with him and that he fired several times as he was leaving the club. The owner of the club ... and a patron ... were both shot. [The owner] was shot in the left calf; [the patron] was shot in the right foot. [The patron] ... was standing near the entrance to the club when the shots began. Both victims required hospitalization and were treated for non-life threatening injuries.... (Counts 35, 36, 37, and 38).

[O]n February 16, 2008, at the Mi Cabana Club in Charlotte, NC, Castillo ... and other MS-13 members were present when rival gang members from the Malditos and Surenos pulled into the parking lot. Gang signs were flashed and a juvenile unindicted MS-13 member opened fire on the car containing the rival gang members, a bronze Chevrolet Lumina. The MS-13 members jumped into a nearby automobile, a burgundy sports utility vehicle, and began chasing the Chevrolet.... Castillo was in the back seat.... Castillo later told investigators he fired shots from a crack in the car window, eventually emptying his weapon. Castillo's shots wounded one of the rival gang members.... Police reports indicate [the rival gang member] was shot in the lower left leg and was treated at the hospital. Two other occupants of the Chevrolet ... were not injured.... (Counts 39 & 40).

(Id., Doc. No. 1295 at ¶¶ 51-52) (emphasis added).

Petitioner stated in open court that he had a chance to read the PSR, understood it, and had enough time to go over it with counsel. (Id., Doc. No. 1560 at 4). Petitioner told the Court he is "sorry ... for everything [he has] done." (Id., Doc. No. 1560 at 25).

The Court found the existence of a factual basis to support entry of the plea and adopted the PSR without change. (Id., Doc. No. 1560 at 3). The Court sentenced Petitioner below the advisory guideline range to a total of 392 months' imprisonment comprised of two months for Counts (1), (35), (37), and (39), concurrent, 90 months, consecutive, for Count (36), and 300 months, consecutive, for Count (40). (Id., Doc. No. 1334); see (Id., Doc. No. 1335) (Statement of Reasons). Petitioner did not appeal.

Petitioner filed the instant § 2255 Motion to Vacate through counsel on June 21, 2016, asking that his § 924(c) convictions be vacated under Johnson. He argues that the predicate VICAR offense is not a "crime of violence" because § 924(c)'s residual clause is unconstitutionally vague and the force clause requires the use of violent force, which assault does not satisfy. He further argues that the Court was without jurisdiction to convict or sentence him for Counts (36) and (40) because the Indictment fails to state an offense against the laws of the United States as required by 18 U.S.C. § 3231.

This case was stayed for several years during the pendency of Fourth Circuit cases United States v. Ali, No. 15-4433 and United States v. Simms, No. 15-4640 and United States Supreme Court case United States v. Davis, No. 18-431. See (Doc. Nos. 5, 8).

On October 4, 2019, the Government filed a Motion to Dismiss arguing that the § 2255 Motion to Vacate is waived, procedurally barred, and meritless. (Doc. No. 12). The Government argues that assault with a dangerous weapon in aid of racketeering under 18 U.S.C. § 1959(a)(3) is a valid § 924(c) predicate because the generic offense of assault with a dangerous weapon is a crime of violence. Even if the generic offense did not qualify, the § 1959 offenses still satisfy § 924(c)'s force clause because the underlying state statute, § 14-32(a) and (c), requires assault with a weapon "with intent to kill."

Petitioner filed a Response, (Doc. No. 15), arguing that his § 924(c) claim is meritorious based on United States v. Mathis, 932 F.3d 242 (4^th Cir. 2019) and United States v. Simmons, 917 F.3d 312 (4^th Cir. 2019), and that his claims are not waived or procedurally defaulted. Petitioner asserts that North Carolina General Statutes § 14-32, is not a § 924(c) predicate because the least culpable of the statute's three alternatives, § 14-32(b), is satisfied by culpable negligence and does not include an ...