Pacheco v. United States

• Decision Date: 26 July 2022
• Docket Number: CV-21-01959-PHX-SPL (JZB),CR-17-01152-01-PHX-SPL
• Parties: Levian D Pacheco, Movant, v. United States of America, Respondent.
• Court: U.S. District Court — District of Arizona

Levian D Pacheco, Movant,
v.
United States of America, Respondent.

Nos. CV-21-01959-PHX-SPL (JZB), CR-17-01152-01-PHX-SPL

United States District Court, D. Arizona

July 26, 2022

HONORABLE JOHN Z. BOYLE, UNITED STATES MAGISTRATE JUDGE

REPORT AND RECOMMENDATION

TO THE HONORABLE STEVEN P. LOGAN, UNITED STATES DISTRICT JUDGE:

Movant Levian D Pacheco has moved to vacate his convictions under 28 U.S.C. § 2255. (Doc. 1.) Because Movant's grounds for relief lack merit, the Court recommends the Motion be denied.^[1]

I. Factual Background and Procedural History.

A. Conviction and Sentencing.

The government indicted Movant on twelve counts: nine counts of abusive sexual contact with a ward in violation of 18 U.S.C. §§ 2244(a)(4) and 2246(3) (Counts 1-8, 12); two counts of sexual abuse of a ward in violation of 18 U.S.C. §§ 2243(b) and 2246(2) (Counts 9-10); and one count of attempted sexual abuse of a ward (Count 11). (CR Doc. 90.) The indictment alleged Movant was a Youth Care Worker at Casa Kokopelli in Mesa,

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Arizona-a detention facility that housed unaccompanied, noncitizen minors awaiting immigration proceedings under a federal contract-when he committed the offenses. (CR Doc. 90); United States v. Pacheco, 977 F.3d 764, 766 (9th Cir. 2020). Upon the government's motion, the Court dismissed Count 12 before it went to trial. (CR Docs. 116, 117.) During trial, Movant moved for a directed verdict, which the Court granted as to Count 5. (CR Doc. 230.) The jury convicted Movant on the remaining counts. (CR Docs. 232, 240.) The Court sentenced Movant to 228 months' imprisonment followed by a lifetime term of supervised release. (CR Doc. 282.)

B. Direct Appeal.

Movant timely appealed. (CR Doc. 283.) Movant raised the following issues on appeal: (1) whether the government presented sufficient evidence the minors were in “official detention . . . pending . . . deportation” as statutorily required to establish federal jurisdiction; (2) whether the government presented sufficient evidence for Count 11; (3) whether the Court wrongly admit certain expert testimony; (4) whether Movant's sentence was reasonable after the Court considered Movant's HIV status; (5) whether movant's sentence was substantively reasonable; and (6) whether Movant's case should be assigned to a different District Court judge on remand. (COA Doc. 12 at 9-11.) The Court of Appeals for the Ninth Circuit affirmed Movant's convictions and sentence. (COA Docs. 59, 60.)

Movant petitioned the United States Supreme Court for a writ of certiorari. (COA Doc. 66.) The Supreme Court denied Movant's petition. (COA Doc. 67.)

II. Motion to Vacate, Set Aside, or Correct Sentence.

Federal prisoners may move to vacate, set aside, or correct their sentence on the ground their sentence “was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C.§ 2255.

As summarized in the Court's November 22, 2021 Order, Movant brings four

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grounds for relief:

In Ground One, Movant alleges that the conduct charged in his criminal case is “nowhere expressly enumerated as a precise subject-matter for Congress to extend a police power not provided expressly in the Constitution or by amendment.” In Ground Two, Movant asserts that when sitting within a state and operating therein, an Article III court lacks constitutional capacity to be conferred with criminal jurisdiction. In Ground Three, Movant contends he received ineffective assistance of counsel because his counsel failed to make objections based on the issues presented in Grounds One and Two in the district court or on appeal. In Ground Four, Movant asserts that “[e]stoppel against the United States has been demonstrated to be required to be imposed to prevent further governmental abuse against individuals.”

(Doc. 4 at 1-2.)

A. Procedural Default and Waiver.

Generally, to obtain relief under § 2255, movants must raise their grounds for relief on direct review or their grounds are procedurally defaulted. See e.g., United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003). If a movant fails to do so, the movant must show the claim is exempt from the direct-appeal requirement, show both good cause and prejudice for the default, or show the movant is actually innocent. See Massaro v. United States, 538 U.S. 500, 504 (2003) (ineffective-assistance claims may be brought for the first time on direct appeal or in a § 2255 proceeding); United States v. Braswell, 501 F.3d 1147, 1149 (9th Cir. 2007).

Here, the record does not reflect Movant raised his grounds for relief at trial. He further did not raise them on direct appeal to the United States Court of Appeals for the Ninth Circuit. (See COA Doc. 12.) But the government did not raise procedural default in its response to Movant's stated grounds for relief in his Motion to vacate, set aside, or correct the sentence. (See generally Doc. 6.) Accordingly, the government has waived procedural default as a defense, and the Court will address the merits of Movant's grounds for relief. See United States v. Barron, 172 F.3d 1153, 1156 (9th Cir. 1999) (“Ordinarily, the government's failure to raise the petitioner's procedural default at the appropriate time waives the defense.”); United States v. Crooker, 360 F.Supp.3d 1095, 1103-04 (E.D.

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Wash. 2019) (procedural default is an affirmative defense the government must raise and is waived if the government fails to do so).

B. Grounds One and Two.

In Ground One, Movant argues Congress lacked the power to the criminalize the conduct for which he was convicted. He asserts “‘sexual abuse' of a ward, or of any individual, is not an enumerated ‘precise subject-matter' for which Congress may legislate over, and much less for the exercise of the ‘police power' over such conduct nationally.” (Doc. 2 at 10.)

“[T]he Necessary and Proper Clause grants Congress broad authority to enact federal legislation.” United States v. Comstock, 560 U.S. 126, 133 (2010). “In general, a statute is within the scope of Congress' authority as long as it ‘constitutes a means that is rationally related to the implementation of a constitutionally enumerated power.'” United States v. Mujahid, 799 F.3d 1228, 1233 (9th Cir. 2015) (quoting Comstock, 560 U.S. at 134)). Accordingly, though Congress “cannot punish felonies generally,” Congress can criminalize conduct under the Necessary and Proper Clause in furtherance of one of its enumerated powers. Id. (citations omitted).

In Mujahid, the Ninth Circuit upheld many of the same statutes at issue in this case when challenged with the same arguments. The government charged the defendant in Mujahid with aggravated sexual abuse, sexual abuse, and abusive sexual contact in violation of 18 U.S.C. §§ 2241, 2242, and 2244 after he sexually assaulted other prisoners in a state facility. Mujahid, 799 F.3d at 1231. The Court noted the circumstances giving rise to aggravated sexual abuse-sexual abuse that occurs “in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency”-are the same for sexual abuse and abusive sexual contact. Id. That defendant also argued “the ‘police power' belongs to the states, and Congress acted beyond its limited, enumerated powers when it extended the statutory reach to cover sexual abuse that occurs in state and local institutions where federal...