United States v. Guardado

• Decision Date: 20 July 2021
• Docket Number: CIVIL ACTION NO. 4:12-cr-40004-TSH
• Citation: 552 F.Supp.3d 52
• Parties: UNITED STATES of America, Plaintiff, v. Marlon GUARDADO, Defendant.
• Court: U.S. District Court — District of Massachusetts

552 F.Supp.3d 52

UNITED STATES of America, Plaintiff,

v.Marlon GUARDADO, Defendant.

CIVIL ACTION NO. 4:12-cr-40004-TSH

United States District Court, D. Massachusetts.

Filed July 20, 2021

Cory S. Flashner, United States Attorney's Office, Worcester, MA, for Plaintiff.

MEMORANDUM AND ORDER ON MOTION TO VACATE (Docket No. 103)

HILLMAN, D.J.,

Marlon Guardado ("Guardado" or "Defendant") moves to vacate his May 2014 felon-in-possession conviction under 18 U.S.C. § 922(g)(1) pursuant to Rehaif v. United States , ––– U.S. ––––, 139 S. Ct. 2191, 204 L.Ed.2d 594 (2019). In Rehaif , the Supreme Court held that the Government must prove the defendant knew they belonged to a category of persons whom the statute prohibits from carrying a gun when they were in possession to sustain a § 922(g)(1) offense. After hearing and upon review, Guardado's motion under 28 U.S.C. § 2255 to vacate his conviction is denied.

Background

On May 12, 2014, Guardado pled guilty to two counts of Felon in Possession of Ammunition, in violation of 18 U.S.C. § 922(g)(1) (Counts 1, 5); three counts of Felon in Possession of a Firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts 2, 4, 6); and two counts of Felon in Possession of a Firearm and Ammunition, in violation of 18 U.S.C. § 922 (g)(1) (Counts 3, 7). He was sentenced to 96 months’ imprisonment and 2 years of supervised release. (Docket No. 97).

Motion to Vacate

While in custody, Guardado timely filed this § 2255 motion to vacate his § 922(g)(1) felon-in-possession conviction on June 22, 2020.¹ (Docket No. 103). He argues that: (1) the Court did not have jurisdiction to sentence him because the indictment did not allege knowledge of status as an essential element of the offense, in violation of his Fifth Amendment right to be charged by a grand jury and his Sixth Amendment right to notice of the charges laid against him; (2) his guilty plea was not made knowingly, intelligently, or voluntarily because the Court did not inform him that knowledge of status was an essential element of the offense, and so violated his Fifth Amendment right to due process; and (3) the indictment against him was defective because it did not inform him of the charges against him, and so violated his Sixth Amendment right to be informed of the charges against him.

Rehaif v. United States

18 U.S.C. § 922 (g) bars nine categories of individuals from possessing firearms, including convicted felons.² Knowing violations are punishable by fines or up to 10 years’ imprisonment. § 924(a)(2).

On June 21, 2019, the Supreme Court held that in prosecutions under § 922(g) and § 924(a)(2), the Government must prove that "the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it." Rehaif, 139 S.Ct. at 2194 (2019).

Discussion

A. The Motion to Vacate was Timely.

Under § 2255(f), "[a] 1-year period of limitation shall apply to a motion under this section ...". See 28 U.S.C. § 2255(f). Where a defendant is asserting that a right was made retroactive to cases on collateral review, the statute of limitations runs from the latest of "... 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 ...". See 28 U.S.C. § 2255(f)(3).

Guardado timely filed his Motion to Vacate on June 22, 2020. Rehaif was issued on June 21, 2019. Under Fed. R. Civ. P. 6(a)(1)(C), if the last day of a period of time to file a motion falls on a weekend or legal holiday, the period continues to run until the next day which is neither a weekend nor a legal holiday. Rules Governing Section 2255 Proceedings , P.L. 94-426 (1976). Because June 21, 2020 fell on a Sunday, the applicable deadline to file a motion to vacate under Rehaif was Monday, June 22, 2020.

B. Defective Indictment did not Strip Court of Jurisdiction to Accept Defendant's Plea and Enter Judgment.

Guardado's motion was procedurally timely, but fails on the merits. Guardado first argues that because Rehaif is a new substantive rule that applies retroactively on collateral review, the fact that he was never informed that knowledge of status was an element of the felon in possession statute at his plea colloquy shows that he did not violate that statute. (Docket No. 108 at 2). Further, Guardado contends that his indictment charged that he knowingly possessed a firearm and ammunition but not that he knew he was not allowed to possess a firearm because of his prior convictions. (See id. ). He also claims that the Court lacked jurisdiction to enter judgment against him because of the missing knowledge of status element in his indictment. (See id. at 3). I begin with the jurisdictional challenge.

The Supreme Court and First Circuit have addressed and summarily dismissed Guardado's jurisdictional argument. See U.S. v. George , 676 F.3d 249, 259-60 (1st Cir. 2012) (clarifying that the use of the word "jurisdiction" when entering a judgment referenced a non-waivable defect, not the district court's power to adjudicate a case); see also U.S. v. Cotton , 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (explaining that defects in an indictment do not deprive a court of its power to adjudicate a case). In U.S. v. Burghardt , a post- Rehaif decision, the First Circuit held that the district court had jurisdiction to accept the defendant's § 922(g) guilty plea where the judge, acting without the benefit of the Rehaif ruling, did not inform Burghardt that the Government would have to prove that he knew that he was a felon when he possessed the firearm in order to sustain a conviction. See 939 F.3d 397, 400 (1st Cir. 2019). Applying Burghardt , in U.S. v. Lara the First Circuit held that the district court had jurisdiction to enter a judgment of conviction against a defendant whose pre- Rehaif indictment did not contain Rehaif ’s knowledge of status element, the exact facts at issue here. See 970 F.3d 68, 85 (1st Cir. 2020). The First Circuit issued the same ruling in United States v. Farmer, 988 F.3d 55, 60-61 (1st Cir. 2021) (citing Burghardt and finding that "the government's failure to allege the scienter-of-status element in the indictment did not deprive the district court of jurisdiction").

Guardado did not raise either Burghardt or Lara in his discussion of why this Court lacked jurisdiction over his case due to the deficient indictment, even though both decisions were issued before he filed his memorandum in support of the motion to vacate on September 14, 2020 ( Farmer was decided after briefing was complete). Since Guardado has not raised any novel argument that provides a compelling reason to deviate from binding precedent, I find that this Court had jurisdiction to accept Guardado's guilty plea and sentence him despite the deficient indictment.

C. Defendant's Fifth and Sixth Amendment Arguments Fail the Plain Error Test.

Having determined that this Court had jurisdiction to accept his plea and sentence Guardado, we now turn to his Fifth and Sixth Amendment arguments. Guardado claims that the defective indictment is a structural error that violated his Fifth Amendment right to be charged by a grand jury and to make a knowing, intelligent, and voluntary plea, and that the defective indictment and judgment violated his Sixth Amendment right to be informed of the charges against him. (Docket No. 108 at 6-9).

The failure to raise a claim at trial or on direct appeal results in a procedural default on collateral review unless the Defendant can demonstrate cause for the default and actual prejudice from the error. See Bousley v. U.S. , 523 U.S. 614, 622, 118 S. Ct. 1604, 140 L.Ed.2d 828 (1998). The First Circuit applies the plain error standard to clear or obvious errors (including structural errors) that were not raised before the district court, such as Fifth and Sixth Amendment challenges.³ See Lara , 970 F.3d at 86. The plain error test has three elements: (1) there must be an error; (2) the error must be clear or obvious; and (3) the error must have affected the defendant's substantial rights. See Molina-Martinez v. U.S. , 578 U.S. 189, 136 S. Ct. 1338, 1343, 194 L.Ed.2d 444 (2016). To make a substantial rights showing, a defendant must ordinarily " ‘show a reasonable probability that, but for the error,’ the outcome of the proceeding would have been different." See id. (citing U.S. v. Dominguez Benitez , 542 U.S. 74, 76, 82, 124 S. Ct. 2333, 159 L.Ed.2d 157 (2004) ). To show actual prejudice in cases which result in a plea rather than a trial, a petitioner "must show that there is a reasonable probability that but for [the] errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart , 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) ; see also U.S. v. Windley , 2020 WL 4583843, at *2 (D. Mass. Aug. 10, 2020). If the Defendant is unable to show prejudice, then they must demonstrate actual innocence to be successful. See Bousley , 523 U.S. at 622, 118 S.Ct. 1604.

The first two prongs of the plain error test are not at issue. The Government concedes there was an error in its indictment, and that the error is clear and obvious, as neither the indictment nor the plea colloquy instructed Guardado that the Government bore the burden of proving at trial that he knew he was a felon when he sold the firearms and ammunition. Therefore, Guardado need only show prejudice, or that if the indictment had properly stated the Government's burden, there is a reasonable probability that he would not have chosen to go to trial rather than plead guilty.⁴

In Burghardt , the First Circuit denied a motion to vacate a § 922(g) felon in possession conviction because the record "reveal[ed] no reason to think that the Government would have had any difficulty at all in offering overwhelming proof that [the defendant] knew he had previously been convicted of offenses punishable by...