Guerrero v. United States
| Decision Date | 06 September 2016 |
| Docket Number | 16 Civ. 4338 (NRB),05 Cr. 1300 (NRB) |
| Citation | 204 F.Supp.3d 645 |
| Parties | Nelson GUERRERO, Movant, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Clay Hubbard Kaminsky, Federal Defenders of New York Inc., New York, NY, for Movant.
Kiersten Ann Fletcher, United States Attorney's Office, New York, NY, for Respondent.
Nelson Guerrero ("Guerrero") was convicted, following a guilty plea, of conspiracy to distribute five kilograms or more of cocaine in violation of 21 U.S.C. § 846. He now moves pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Relying on Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), he argues that he no longer qualifies as a career offender under the Sentencing Guidelines ("U.S.S.G."). The government argues that the motion should be denied, or in the alternative, stayed pending the Supreme Court's decision in Beckles v. United States , No. 15–8544. For the following reasons, the motion is denied.
In sentencing Guerrero in June 2007, this Court adopted the findings of the Probation Department in its Presentence Investigation Report ("PSR"), which calculated Guerrero's Guidelines range based on the determination that he was a career offender pursuant to U.S.S.G. § 4B1.1. Section 4B1.1 requires, inter alia , that the "instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense" and that "the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense," U.S.S.G. § 4B1.1(a). For Guerrero, the two prior felony convictions resulting in career offender status were a 2003 federal conviction for distribution of a controlled substance, which qualified as a "controlled substance offense," and a 2005 New York State conviction for first-degree burglary, which qualified as a "crime of violence."
As a result of his career offender designation, Guerrero's base offense level was set at 37 and his Criminal History Category ("CHC") was increased from II to VI. Following a three-level reduction for acceptance of responsibility, Guerrero's Guidelines range was 262 to 327 months' imprisonment. By statute, he also faced a mandatory minimum of 120 months' imprisonment.
21 U.S.C. § 841(b)(1)(A). Absent career offender status, Guerrero's Guidelines range would have been 120 to 121 months' imprisonment.
At sentencing on June 28, 2007, this Court adopted the Guidelines range calculated in the PSR. However, noting that classifying Guerrero in CHC VI "overstate[d] his criminal history," the Court explained that it was giving a "nonguidelines sentence, essentially, because within the guidelines regime, I don't get the flexibility that I believe is appropriate here." Transcript of June 28, 2007 Sentencing at 44.
Significantly, Guerrero had committed his burglary offense and the drug offense for which he was being sentenced shortly after receiving a lenient prison sentence of time served following thirteen days in custody in connection with his prior conviction for a federal drug offense. This Court thus expressed concern over Guerrero's "incredible disregard of the break" he had been provided and his overall record of criminal conduct. Id. at 44–45. Emphasizing the "extraordinary" indifference Guerrero had demonstrated to law enforcement and to the federal judge who had previously sentenced him, the Court stated: "[W]hile I don't feel that a guidelines sentence is warranted here, I also don't feel that the absolute minimum is appropriate either." Id. at 45; see id. at 48 (). The Court then sentenced Guerrero principally to 144 months' imprisonment. Id. at 45.
On June 7, 2016, Guerrero filed this counseled motion to vacate his sentence.1 He argues that in light of Johnson , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569, his prior New York conviction for first-degree burglary can no longer be considered a "crime of violence."
As stated above, § 4B1.1 enhances a defendant's offense level if the defendant, inter alia , has at least two previous convictions for a crime of violence or a controlled substance offense. At the time of Guerrero's sentencing, "crime of violence" was defined as follows:
U.S.S.G. § 4B1.2(a) (2006) (emphases added). Subsection 4B1.2(a)(1) is known as the "elements clause." The first emphasized portion of § 4B1.2(a) (2) is known as the "enumerated offenses clause," and the second emphasized portion is the "residual clause."
In Johnson , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569, the Supreme Court declared that the residual clause of the Armed Career Criminal Act ("ACCA"), found in 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague. The ACCA provides for a 15-year mandatory minimum sentence for defendants convicted under 18 U.S.C. § 922(g) if they have three prior "violent felon[ies]" or "serious drug offense[s]." 18 U.S.C. § 924(e)(1). Applying the void-for-vagueness doctrine, the Court concluded that the residual clause failed to provide "fair notice to defendants" and "invite[d] arbitrary enforcement by judges," and thus denied due process of law to a defendant whose sentence was increased thereunder. Johnson , 135 S.Ct. at 2557. Less than a year later, in Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), the Supreme Court held that Johnson announced a substantive rule that has retroactive effect in cases on collateral review.
The ACCA's now-invalidated residual clause utilized wording identical to the residual clause contained in the relevant version of § 4B1.2(a).2 After Guerrero's § 2255 motion was filed, the Supreme Court granted certiorari in Beckles v. United States , No. 15–8544, ––– U.S. ––––, 136 S.Ct. 2510, 195 L.Ed.2d 838, 2016 WL 1029080 (U.S. June 27, 2016), which presents the following questions: (1) whether Johnson 's holding applies to the residual clause in the career offender Guideline; (2) if so, whether Johnson 's invalidation of the residual clause in the career offender Guideline applies retroactively on collateral review; and (3) whether a conviction for unlawful possession of a sawed-off shotgun qualifies as a "crime of violence" under the Guideline.
Guerrero contends that Johnson applies to invalidate the residual clause in § 4B1.2(a). Just as it has elsewhere, the government here "agrees that Johnson invalidates the career offender Guideline's residual clause for current cases." Memorandum of Law of the United States of America in Opposition to Petitioner Nelson Guerrero's Motion to Vacate Under 28 U.S.C. § 2255 at 16. The government instead argues that Guerrero's motion does not meet the requirements of 28 U.S.C. § 2255(f)(3). Under § 2255(f), a one-year period of limitation runs from the latest of, to the extent relevant here, "the date on which the judgment of conviction becomes final" or "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(1), (3). Guerrero's judgment of conviction became final over nine years ago. See Moshier v. United States , 402 F.3d 116, 118 (2d Cir.2005) (). Thus, to obtain the reset provided for in § 2255(f)(3), Guerrero must have filed his motion within "one year from the date on which the right he asserts was initially recognized" by the Supreme Court. Dodd v. United States , 545 U.S. 353, 357, 125 S.Ct. 2478, 162 L.Ed.2d 343 (2005).
While Guerrero contends that his June 7, 2016 motion is timely because the Supreme Court decided Johnson on June 26, 2015, the government takes the position that the motion is, at a minimum, premature, because the right that Guerrero asserts has not yet been recognized by the Supreme Court. Despite conceding that the residual clause in § 4B1.2(a) is void for vagueness following Johnson as applied to current cases, the government argues that the granting of certiorari in Beckles demonstrates that the Supreme Court does not view its opinions in Johnson and Welch as having already recognized a new right applicable to the Guideline.
The government also contends that even if such a new right has been recognized by the Supreme Court, it should not be applied retroactively to Guerrero's sentence. Pursuant to the framework established by the plurality opinion in Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), and its progeny, the government argues that any new rule invalidating the residual clause in § 4B1.2(a) would be procedural and not substantive, rendering it unsusceptible to retroactive application on collateral review. Highlighting the significant risk of a higher sentence that results from career offender designation, Guerrero responds that Johnson announced a substantive rule that has retroactive effect in both ACCA and career offender Guideline cases.
Finally, the government argues that, even if applicable retroactively to this case, Johnson has no effect on Guerrero's career offender status because his New York first-degree burglary...
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