United States v. Forteza-Garcia
| Decision Date | 26 February 2021 |
| Docket Number | CIVIL. NO. 20-1154 (RAM) |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. ANGEL FORTEZA-GARCIA, Defendant. |
| Court | U.S. District Court — District of Puerto Rico |
Pending before the Court is Petitioner Angel Forteza-García's Second Motion to Vacate, Set Aside or Correct Sentence ("Second Motion") pursuant to 28 U.S.C. § 2255. (Docket No. 2). The Assistant Federal Public Defender also filed a Memorandum of Law in Support of Petitioner's 28 U.S.C. § 2255 Motion ("Memorandum in Support") filed on Defendant's behalf. (Docket No. 13). While the Assistant Federal Public Defender has competently presented Petitioner's case, having considered the arguments of the parties, the Court DENIES Petitioner's Second Motion. (Docket Nos. 2, 13, 16 and 17). No certificate of appealability shall issue as the Second Motion fails to make a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C. § 2253(c)(2). In accordance with Rule 22(b)(1) of the Federal Rules of Appellate Procedure, Petitioner may still seek a certificate directly from the United States Court of Appeals for the First Circuit ("First Circuit").
On March 12, 2003 a Grand Jury returned the original indictment in Case No. 03-cr-0073-2 (JAF). (Docket No. 7). The 6-count indictment charged Petitioner Angel Forteza-García ("Petitioner" or "Forteza-García") and co-defendants Angel Forteza-García and David Gómez-Olmeda with robbing and murdering A.V.G., a confidential informant. Id.
On September 24, 2003, Petitioner plead guilty to Count Three of the original Indictment in Criminal Case no. 03-cr-0073-2 pursuant to a plea agreement. (Docket Nos. 7 and 124). Count Three charged Petitioner and his co-defendants with a violation of 18 U.S.C. §§ 924(c)(3) and 924 (j) and 2 in the course of committing a violation of Title 18 U.S.C. § 2114 (). Id.
Judgment was entered against Forteza-García on January 15, 2004 and he was sentenced to Three-Hundred Twenty-Four (324) months of imprisonment and five (5) years of supervised release. (Docket No. 187).
In the Memorandum in Support, Petitioner posits that his conviction under 18 U.S.C. §§ 924(c) and 924(j) and 2 for unlawfully possessing, using, or carrying a firearm in relation to a crime of violence resulting in murder as defined in 18 U.S.C. § 1111 must be vacated. (Docket No. 13 at 1). Petitioner avers that the predicate crime underlying the Section 924(c) and (j) and 2 convictions, 18 U.S.C. 2114(a) (), is not "a crime of violence" under Section 924(c)(3)(A) (the "force clause"). Id. at 1-2. Petitioner argues that: (a) postal robbery does "not necessarily require as an element, the actual, threatened, or attempted use of force[,]" and (b) the least culpable form of postal robbery criminalizes "rather minimal" force not "capable of causing physical pain or injury to another person." Id. at 8-13.
The Government responds that 18 U.S.C. § 2114 is a "crime of violence" because according to multiple Circuit Courts, the word "rob" in the statute refers to common-law robbery which requires force or violence. (Docket No. 16 at 6-8). The Government also argues that Petitioner's Section 924(c) conviction is predicated on the "aggravated modality" of 18 U.S.C. 2114(a). Id. at 8. Lastly, the Government points to case law from the United States District Court for District of Puerto Rico ("District of Puerto Rico") and other United States Circuit Courts of Appeals which have concluded that 18 U.S.C. § 2114(a)'s "aggravated modality" is a "crime of violence." Id. at 9-10.
The Court need not determine whether robbery or assault in the first part of 18 U.S.C. § 2114(a) constitute "crimes of violence." Nor must it determine whether the offense in 18 U.S.C. § 2114(a) is not a "crime of violence" under 18 U.S.C. 924(c)(3)(B) (the "residual clause") because the Supreme Court of the United States has already declared the residual clause void for vagueness. See United States v. Davis, 139 S. Ct. 2319 (2019). Instead, for the following reasons explained below, the Court holds that the predicate offense in this case is 18 U.S.C. § 2114(a)'s "aggravated offense" which is a "crime of violence" under Section 924(c)(3)(A)'s "force clause."
First, 18 U.S.C. § 2114(a) is a divisible statute with an aggravated offense that provides for enhanced penalties when a victim is wounded, or the victim's life is put in jeopardy using a dangerous weapon. Persuasive precedent from several United States Courts of Appeals and the District of Puerto Rico have held that the aggravated offense in 18 U.S.C. § 2114(a) constitutes a "crime of violence" under Section 924(c)(3)(A)'s "force clause."
Second, applying the modified categorical approach by examining the Indictment, the Plea Agreement, and the plea colloquy confirms that Petitioner plead guilty to the aggravated offense in 18 U.S.C. § 2114(a).
Under 28 U.S.C. § 2255, a prisoner in custody under a sentence of a Federal Court may move the Court that imposed the sentence to vacate, set aside or correct the sentence:
[U]pon the ground that the 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.
A petitioner's post-conviction request for relief "must show that his sentence 'reveal[s] fundamental defects which, if uncorrected, will result in a complete miscarriage of justice.'" Gandia-Maysonet v. United States, 2020 WL 5646457, at *2 (D.P.R. 2020) (quoting Lebron Ortiz v. United States, 2015 WL 2400746, at *2 (D.P.R. 2015)). Thus, the petitioner bears the burden of establishing the defect. Id.
Likewise, "[w]hen a petition is brought under section 2255, the petitioner bears the burden of establishing the need for an evidentiary hearing." U.S. v. McGill, 11 F.3d 223, 225 (1st Cir. 1993) (citations omitted). To determine whether the petitioner has met this burden, "the court must take many of petitioner's factual averments as true," but it need not "give weight to conclusory allegations, self-interested characterizations, discredited inventions, or opprobrious epithets." Id. (citation omitted). A hearing on such a petition "generally is not necessary when a § 2255 motion (1) is inadequate on its face, or (2) although facially adequate is conclusively refuted as to the alleged facts by the files and records of the case." Moran v. Hogan, 494 F.2d 1220, 1222 (1st Cir. 1974). Simply put, a Section 2255 motion "'may be denied without a hearing as to those allegations which, if accepted as true, entitle the movant to no relief, or which need not be accepted as true because they state conclusions instead of facts, contradict the record, or are inherently incredible.'" McGill, 11 F.3d at 226 (quoting Shraiar v. United States, 736 F.2d 817, 818 (1st Cir. 1984)) (internal quotation omitted).
No hearing has been requested or is necessary in this case because the Petition presents only legal issues and does not require resolving any disputed factual issues. See Gandia-Maysonet, 2020 WL 5646457, at *2 (quoting Miller v. United States, 564 F.2d 103, 106 (1st Cir. 1977)) ("Where there are no disputed facts crucial to the outcome, leaving only questions of law, [§] 2255 does not require a hearing; the motion may be decided [...] without oral presentation").
Section 924(c)(1) provides for enhanced penalties to:
[A]ny 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[.]
18 U.S.C. § 924(c)(1). Furthermore, Section 924(c)(3) contains two definitions of the statutory term "crime of violence." A "crime of violence" is one that:
18 U.S.C. § 924 (c)(3). Section 924(c)(3)(A) is known as the "force clause". See United States v. Rose, 896 F.3d. 104, 106 (1st Cir. 2018). Whereas section 924(c)(3)(B) is known as the "residual clause." Id. The Court need not dwell on subsection "B" as it has been declared unconstitutional. See Davis, 139 S. Ct. at 2336.
As explained by the First Circuit, the first step in determining whether a statute is a "crime of violence" under Section 924(c)(3)(A)'s force clause, is to ascertain "whether the criminal statute of the predicate offense is indivisible or divisible." King v. United States, 965 F.3d 60, 65 (1st Cir. 2020). An indivisible statute contains a "single, indivisible set of elements[,]" instead of containing alternative elements, "that criminalizes a broader swath of conduct than the relevant generic offense." Descamps v. United States, 570 U.S. 254, 258 (2013). This indivisible statute may also "enumerate[] various factual means of committing a single element." United States v. Faust, 853 F.3d 39, 52 (1st Cir. 2017); see also Mathis v. United States, 136 S.Ct. 2243, 2249 (2016) (). Conversely, a statute is considered "divisible" when it "sets...
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