Rojas-Tapia v. United States
| Decision Date | 13 July 2020 |
| Docket Number | Civil No.: 17-1759 (DRD) |
| Parties | JOSE ROJAS-TAPIA, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Puerto Rico |
Related Crim. Case Nos. 99-309 (DRD); 99-385 (PG)
Pending before the Court is Mr. José Rojas-Tapia's ("Petitioner") Motion to Vacate Sentence Under 28 U.S.C. § 2255 ("Motion to Vacate"). See Civil Case No. 17-1759, Docket No. 1. Petitioner argues that his sentence and corresponding convictions must be vacated since the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II") invalidated the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii) after determining that it was unconstitutionally vague. Furthermore, Petitioner asserts that Johnson II's reasoning should be applied to also invalidate the residual clauses contained in 18 U.S.C. § 924 (c) and the "pre-Booker" Career Offender Guidelines which were used to sentence and convict him as well. After careful examination, the Court hereby DENIES Petitioner's Motion to Vacate.
For events that took place on September 2, 1999, Petitioner was charged for robbing postal offices and placing his victims' lives in jeopardy through the use of dangerous weapons. To that end, on September 29, 1999 a Grand Jury returned a six-count indictment against Petitioner in Criminal Case No. 99-309. Specifically, Petitioner was charged for: one count of aiding and abetting in an assault on postal employees with the intent to rob, jeopardizing lives in the commission of the offense by using dangerous weapons in violation of 18 U.S.C. § 2114(a) (Count One); two counts of aiding and abetting in using and carrying firearms during and in relation to the crime charged in Count One, in violation of 18 U.S.C. §§ 924(c) (Counts Two and Three); one count of aiding and abetting in possessing firearms in a federal facility, in violation of 18 U.S.C. §§ 930(b) (Count Four); one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g) and 924(e) (Count Five); and one count of aiding and abetting in attempting to kill police officer Luis Castro in the course of possessing firearms in a federal facility, in violation of 18 U.S.C. §§ 930(c) (Count Six). See Criminal Case No. 99-309 at Docket Nos. 16 and 35.
Later, on December 27, 1999 a second indictment was filed against Petitioner. See Criminal Case No. 99-385 at Docket No. 7. The charges in this case were related to another separate postal office robbery that occurred on August 10, 1999. Specifically, Petitioner was charged for the following: one count of aiding and abetting in an assault on postal employees with the intent to rob, jeopardizing lives during the commission of the offense by using dangerous weapons in violation of 18 U.S.C. §§ 2114(a) (Count One); two counts of aiding and abetting in using and carrying firearms during and in relation to the crime charged in Count One in violation of 18 U.S.C. §§ 924(c) (Count Two and Three); one count of aiding and abetting in possessing firearms in a federal facility in violation of 18 U.S.C. §§ 930(b) (Count Four); and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e) (Count Five). Id.
The referenced cases were eventually consolidated. Petitioner plead guilty to all counts on October 20, 2000. See Criminal Case No. 99-309 at Docket Nos. 135 and 136. Consequently, on October 10, 2001, the Court in Criminal Case No. 99-309 entered a Judgment sentencing Petitioner to the following imprisonment terms: 262 months as to Count One; 60 months as to Count Fourand 10 months as to Count Five. See Criminal Case No. 99-609, Docket No. 204 at 2.1 Furthermore, as additional imprisonment terms, the Court imposed 300 months as to Count Two and 300 months as to Count Three; said terms were to be served concurrently with each other.2 Id. As to Criminal Case No. 99-385, on the same date, the Court sentenced Petitioner to 262 months as to Count One, 60 months as to Count Four, and 180 months as to Count Five, all to be served concurrently with each other and concurrently with Counts One, Four and Five in Criminal Case No. 99-309. See Criminal Case No. 99-385, Docket No. 99 at 2. In this case, the Court also sentenced Petitioner to 84 months for Count Two and 120 months for Count Three, to be served consecutively to the term of imprisonment imposed in Criminal Case No. 99-309. Id. at 3.
Pursuant to § 2255, a prisoner prevails on his motion to vacate, set aside, or correct a sentence if the petitioner proves one of the following: (i) "the sentence was imposed in violation of the Constitution or laws of the United States," (ii) "the court was without jurisdiction to impose such sentence," (iii) "the sentence was in excess of the maximum authorized by law," or (iv) the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). See, also, Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).
In his Motion to Vacate, Petitioner contends that, pursuant to the Supreme Court's decision in Johnson II he: (A) no longer qualifies as an Armed Career Criminal because his prior convictions are not "violent felonies" under the ACCA's force clause; (B) is not guilty of CountsTwo and Three of both criminal cases since they no longer qualify as a "crime of violence" under 18 U.S.C. § 924(c)(3)(B)'s residual clause; and (C) no longer qualifies for an enhanced base offense level of 26 under USSG 2K2.1(a)(1), because absent the residual clause in USSG § 4B1.2(a)(2), his prior convictions are no longer "crimes of violence." See Docket No. 1 at 1-2.
The ACCA mandates a minimum sentence of fifteen years for qualifying defendants who violate Section 922 (g). See 18 U.S.C. § 924 (e)(1). A defendant qualifies under this section if he "has three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." See 18 U.S.C. § 924(e)(1).
18 U.S.C. § 924(e)(2)(B). Furthermore, the Supreme Court has stated that the term "physical force" "means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States, 559 U.S. 133, 140 (2010). "Thus, the question is whether the predicate offense contains as an element violent force capable of causing physical pain or injury." United States v. Starks, 861 F.3d 306, 314 (1st Cir. 2017).
The Supreme Court has established a "categorical approach" to determine whether a defendant's prior conviction satisfies the force clause. See Taylor v. United States, 495 U.S. 575,588 (1990). Under the categorical approach, the sentencing court is required "to look only to the fact of conviction and the statutory definition of the prior offense". Taylor v. United States, supra, at 588. "This means that a prior conviction will either count or not based solely on the fact of conviction rather than on facts particular to the individual defendant's case." United States v. Faust, 853 F.3d 39, 50 (1st Cir. 2017).4
Further, the Court must note that "[t]he categorical or modified categorical approach 'applies not just to jury verdicts, but also to plea agreements.'" United States v. Mohamed, 920 F.3d 94, 101 (1st Cir. 2019) (citing Descamps v. United States, 570 U.S. 254, 262-63 (2013)).
Petitioner contends that, pursuant to Johnson II, the residual clause of 18 U.S.C. § 924 (c) ("Section 924 (c)") should be deemed invalid. Consequently, he reasons that, absent said residual clause, the underlying criminal offense -Count One (aiding and abetting a postal robbery)- to Counts Two and Three of both criminal cases no longer qualifies as a "crime of violence" under Section 924 (c).
In its relevant part, Section 924 (c) provides that "any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm" shall face an additional punishment provided for such crime of violence or drug trafficking crime. 18 U.S.C. § 924 (c).
After Petitioner filed its Motion to Vacate -and the government filed its corresponding Opposition- the Supreme Court ruled that the residual clause contained in Section 924 (c) is unconstitutionally vague. See United States v. Davis, 139 S.Ct. 2319, 2336 (2019). Therefore, the Court must determine whether the underlying offense related to Counts Two and Three qualifies as a "crime of violence" under the force clause of Section 924 (c).
Specifically, the charge for aiding and abetting a postal robbery was made under 18 U.S.C. § 2114 (a) which states:
(a) Assault.--A person who assaults any person having lawful charge, control, or custody of any mail matter or of any money or other property of the United States, with intent to rob, steal, or purloin such mail...
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