United States v. Garcia, Case No. 13-cr-00601-JST-1

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
Writing for the CourtJON S. TIGAR, United States District Judge
Citation202 F.Supp.3d 1109
Parties UNITED STATES of America, Plaintiff, v. Heri GARCIA, Defendant.
Decision Date16 August 2016
Docket NumberCase No. 13-cr-00601-JST-1

202 F.Supp.3d 1109

UNITED STATES of America, Plaintiff,
v.
Heri GARCIA, Defendant.

Case No. 13-cr-00601-JST-1

United States District Court, N.D. California.

Signed August 16, 2016


202 F.Supp.3d 1111

James Craig Mann, United States Attorney's Office, Oakland, CA, for Plaintiff.

Jerome Emory Matthews, Office of the Federal Public Defender, Oakland, CA, for Defendant.

ORDER GRANTING MOTION TO VACATE SENTENCE

Re: ECF No. 58

JON S. TIGAR, United States District Judge

Before the Court is Defendant Heri Garcia's motion to vacate sentence pursuant to 28 U.S.C. § 2255. ECF No. 58. On July 13, 2016, the Court granted Defendant's motion, ECF No. 73, and scheduled a re-sentencing hearing for August 26, 2016, ECF No. 74. This order sets forth the reasoning underlying the Court's July 13, 2016 order granting Defendant's motion.

I. BACKGROUND

On September 12, 2013, Defendant was charged by indictment with one count of violation of 18 U.S.C. § 922(g)(1) (felon in possession of a firearm). ECF No. 1. On March 18, 2015, Defendant pleaded guilty to that count in the indictment. ECF No. 56. The Court sentenced Defendant to 30

202 F.Supp.3d 1112

months imprisonment. Id. at 2. Defendant voluntarily surrendered to begin his sentence on May 12, 2015, and his anticipated release date is June 28, 2017. ECF No. 58 at 1–2.

In determining Defendant's sentence, the Court first concluded that Defendant's base offense level was 20 under U.S.S.G. § 2K2.1(a)(4)(A) because Defendant had a prior conviction for a "crime of violence," namely involuntary manslaughter under Cal. Penal Code § 192(b). ECF No. 58 at 2; ECF No. 65 at 8. The Court then increased Defendant's offense level by two under U.S.S.G. § 2K2.1(b)(4)(A) based on his possession of a firearm that was stolen, and decreased Defendant's offense level by three based on Defendant's acceptance of responsibility. Id. These adjustments resulted in an offense level of 19, and a corresponding Guidelines sentencing range of 37 to 46 months. Id.

On April 25, 2016, Defendant filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. ECF No. 58. The Court held a hearing on Defendant's motion on June 10, 2016 and took the matter under submission. ECF No. 67. On July 13, 2016, the Court granted Defendant's motion, noted that a subsequent order would set forth the Court's reasoning, and scheduled a resentencing hearing. ECF No. 73.

II. LEGAL STANDARD

Defendant's motion to vacate his sentence arises under 28 U.S.C. § 2255, which provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). Thus, "[u]nder 28 U.S.C. § 2255, a federal court may vacate, set aside, or correct a federal prisoner's sentence if the sentence was imposed in violation of the Constitution or laws of the United States." United States v. Withers , 638 F.3d 1055, 1062 (9th Cir.2011).

III. ANALYSIS

Defendant challenges his sentence based on the fact that the Guidelines calculation underlying his sentence incorporated the same definition of a "crime of violence" that the Supreme Court recently determined was unconstitutionally vague in the context of the Armed Career Criminal Act ("ACCA") in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Absent the conclusion that Defendant had previously been convicted of a "crime of violence," Defendant argues his base offense level would have been 13, as opposed to 20, resulting in a corresponding Guidelines sentencing range of 18 to 24 months, as opposed to 37 to 46 months.1 ECF No. 58 at 2.

Defendant's base offense level was calculated to be 20 under U.S.S.G. § 2K2.1(a)(4)(A) based on the Court's conclusion that Defendant's conviction for involuntary manslaughter under Cal. Penal Code § 192(b) constituted a "crime of violence." Section 2K2.1(a)(4)(A) incorporates the definition of "crime of violence" set forth in section 4B1.2(a), which provides:

The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that—
202 F.Supp.3d 1113
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or

(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

The Court determined that Defendant's prior conviction for involuntary manslaughter fit within this definition of crime of violence because involuntary manslaughter "involves conduct that presents a serious potential risk of physical injury to another." U.S.S.G. § 4B1.2(a)(2). This portion of section 4B1.2(a)'s definition of "crime of violence" is generally referred to as the "residual clause."

In Johnson , the Supreme Court determined that the definition of "violent felony" in a separate statute, 18 U.S.C. § 924(e)(2)(B), was unconstitutionally vague such that "imposing an increased sentence [under that statute] violates the Constitution's guarantee of due process." 135 S.Ct. at 2563. The definition of "violent felony" at issue in Johnson is identical to the definition of "crime of violence" found in U.S.S.G. § 4B1.2(a), the statute at issue in this case. In ruling that the definition of "violent felony" in 18 U.S.C. § 924(e)(2)(B) was unconstitutionally vague, the Supreme Court focused its analysis on the residual clause, which this Court also relied upon in calculating Defendant's base offense level. Id. at 2557 ("We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.").

The government concedes that the Supreme Court's holding in Johnson "applies to the residual clause of section 4B1.2 for cases on direct appeal." ECF No. 65 at 3. Thus, the government concedes that were Defendant before the Court today for sentencing in the first instance, the Court would not be permitted to conclude that Defendant's prior involuntary manslaughter conviction constituted a "crime of violence," resulting in a base offense level of 20. Rather, were Defendant before the Court today for sentencing in the first instance, the Court would calculate Defendant's base offense level to be 13. Nonetheless, the government argues that Defendant is not entitled to relief pursuant to 28 U.S.C. § 2255 for two reasons. Id. First, the government argues that Defendant "procedurally defaulted his Johnson claim and cannot show cause and prejudice." Id. Second, the government asserts that " Johnson is not retroactive to challenges to the" Sentencing Guidelines. Id. at 12.

A. Procedural Default

"The general rule in federal habeas cases is that a defendant who fails to raise a claim on direct appeal is barred from raising the claim on collateral review." Sanchez – Llamas v. Oregon , 548 U.S. 331, 350–51, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006) ; United States v. Ratigan , 351 F.3d 957, 962 (9th Cir.2003) ("A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default."). There is, however, "an exception if a defendant can demonstrate both ‘cause’ for not raising the claim at trial, and ‘prejudice’ from not having done so." Sanchez – Llamas , 548 U.S. at 351, 126 S.Ct. 2669.

Here, the government argues that Defendant procedurally defaulted his claim based on the vagueness of the residual clause by failing to raise that claim on direct appeal. Defendant acknowledges that he failed to raise this claim on direct appeal. ECF No. 66 at 2. Nonetheless,

202 F.Supp.3d 1114

Defendant argues that his procedural default should be excused because he has demonstrated both cause and prejudice. Id.

1. Cause

"In procedural default cases, the cause standard requires the petitioner to show that some objective factor external to the defense impeded counsel's efforts to raise the claim [on direct appeal]." McCleskey v. Zant , 499 U.S. 467, 493, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991) (internal quotation marks omitted). "Objective factors that constitute cause include ... a showing that the factual or legal basis for a claim was not reasonably available to counsel." Id. ; Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) (holding that "where a constitutional claim is so novel that its legal basis is not reasonably...

To continue reading

Request your trial
6 practice notes
  • United States v. Mitchell, CRIMINAL NO. 1:06–CR–353
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • November 10, 2016
    ...defendant from failing to raise a void-for-vagueness challenge on direct appeal. See , e.g. , United States v. Garcia , No. 13–CR–601, 202 F.Supp.3d 1109, 1113–15, 2016 WL 4364438, at *3 (N.D. Cal. Aug. 16, 2016) ; Casper v. United States , No. 08–CR–127, 2016 WL 3583814, at *4 (W.D.N.C. Ju......
  • Gaines v. United States, Case Nos. 2:16-cv-07067-CAS, 2:99-cr-00257-CAS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 3, 2017
    ...procedurally defaulted because such claims were not "reasonably available" prior to Johnson II. See United States v. Garcia, 202 F.Supp.3d 1109, 1114–15 (N.D. Cal. 2016) ; Alvarado v. United States, No. 16-cv-4411-GW, 2016 WL 6302517, *3 (C.D. Cal. Oct. 14, 2016) ; United States v......
  • Wade v. United States, Case No. 2:16–cv–06515–CAS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 16, 2017
    ...defaulted because such claims were not "reasonably available" prior to Johnson II . See United States v. Garcia , 202 F.Supp.3d 1109, 1113–14 (N.D. Cal. 2016) ; Alvarado v. United States , No. 16-cv-4411-GW, 2016 WL 6302517, *3 (C.D. Cal. Oct. 14, 2016) ; United States v. Kinman ,......
  • United States v. Kennedy, CASE NO. 1:12–CR–414–LJO–SKO–1
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • November 3, 2016
    ...to the identically worded residual clause in § 4B1.2(a) was foreclosed by Supreme Court precedent. See United States v. Garcia , 202 F.Supp.3d 1109, 1113-14, 2016 WL 4364438, at *3 (N.D. Cal. 2016) (petitioner challenging § 4B1.2(a) did not procedurally default argument by not raising it on......
  • Request a trial to view additional results
6 cases
  • United States v. Mitchell, CRIMINAL NO. 1:06–CR–353
    • United States
    • United States District Courts. 3th Circuit. United States District Court of Middle District of Pennsylvania
    • November 10, 2016
    ...defendant from failing to raise a void-for-vagueness challenge on direct appeal. See , e.g. , United States v. Garcia , No. 13–CR–601, 202 F.Supp.3d 1109, 1113–15, 2016 WL 4364438, at *3 (N.D. Cal. Aug. 16, 2016) ; Casper v. United States , No. 08–CR–127, 2016 WL 3583814, at *4 (W.D.N.C. Ju......
  • Gaines v. United States, Case Nos. 2:16-cv-07067-CAS, 2:99-cr-00257-CAS.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • April 3, 2017
    ...procedurally defaulted because such claims were not "reasonably available" prior to Johnson II. See United States v. Garcia, 202 F.Supp.3d 1109, 1114–15 (N.D. Cal. 2016) ; Alvarado v. United States, No. 16-cv-4411-GW, 2016 WL 6302517, *3 (C.D. Cal. Oct. 14, 2016) ; United States v......
  • Wade v. United States, Case No. 2:16–cv–06515–CAS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • March 16, 2017
    ...defaulted because such claims were not "reasonably available" prior to Johnson II . See United States v. Garcia , 202 F.Supp.3d 1109, 1113–14 (N.D. Cal. 2016) ; Alvarado v. United States , No. 16-cv-4411-GW, 2016 WL 6302517, *3 (C.D. Cal. Oct. 14, 2016) ; United States v. Kinman ,......
  • United States v. Kennedy, CASE NO. 1:12–CR–414–LJO–SKO–1
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • November 3, 2016
    ...to the identically worded residual clause in § 4B1.2(a) was foreclosed by Supreme Court precedent. See United States v. Garcia , 202 F.Supp.3d 1109, 1113-14, 2016 WL 4364438, at *3 (N.D. Cal. 2016) (petitioner challenging § 4B1.2(a) did not procedurally default argument by not raising it on......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT