United States v. Lobo-Lopez

• Decision Date: 08 September 2016
• Docket Number: Criminal No. 1:08-cr-194,Civil Action No. 1:16-cv-761
• Citation: 206 F.Supp.3d 1084
• Parties: UNITED STATES of America v. Oscar Omar LOBO-LOPEZ.
• Court: U.S. District Court — Eastern District of Virginia

206 F.Supp.3d 1084

UNITED STATES of America

v.Oscar Omar LOBO-LOPEZ.

Criminal No. 1:08-cr-194

Civil Action No. 1:16-cv-761

United States District Court, E.D. Virginia, Alexandria Division .

Signed September 8, 2016

Morris R. Parker, Jr., Patricia T. Giles, United States Attorney's Office, Alexandria, VA, for United States of America.

John C. Kiyonaga, Kiyonaga and Kiyonaga, Lana Marie Manitta, Rich Greenberg Rosenthal & Costle LLP, Alexandria, VA, for Oscar Omar Lobo-Lopez.

AMENDED MEMORANDUM OPINION¹

T.S. Ellis, III, United States District Judge

Defendant, by counsel, has filed a motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence imposed on him seven years ago on the ground that the Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), operates to invalidate his conviction for one count of using a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). At issue on the government's motion to dismiss is whether defendant's § 2255 motion is untimely pursuant to the one-year statute of limitations set forth in 28 U.S.C. § 2255(f). Also at issue, assuming defendant's § 2255 motion is timely, is whether Johnson operates to invalidate defendant's § 924(c) conviction. Because the matter has been fully briefed and the facts and law are fully set forth in the existing record, neither oral argument nor an evidentiary hearing would aid the decisional process.² Accordingly, the matter is now ripe for disposition.

I.

On April 21, 2009, a jury found defendant guilty of each of three counts charged against him in an indictment, all of which arose from defendant's involvement with the Mara Salvatrucha (MS-13) gang. Specifically the jury found defendant guilty of:

(i) conspiracy to commit murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 1);

(ii) murder in aid of racketeering activity, in violation of 18 U.S.C. § 1959(a)(1) and (2) (Count 2);

(iii) use of a firearm during a crime of violence causing death, in violation of 18 U.S.C. § 924(c)(1)(A) and (j) (Count 3).

Thereafter, on September 18, 2009, defendant received the following sentences:

(i) with respect to Count 1, ten years' imprisonment, followed by three years' supervised release, with special conditions;

(ii) with respect to Count 2, life imprisonment (to run concurrently with Count 2), followed by five years' supervised release, with special conditions;

(iii) with respect to Count 3, ten years' imprisonment (to run consecutively to the other counts), followed by five years' supervised release.³

At issue here is defendant's conviction for Count 3, use of a firearm during a crime of violence causing death, in violation of § 924(c)(1)(A) and (j).

Pursuant to § 924(c), a defendant who "during and in relation to any crime of violence ... uses or carries a firearm ... shall, in addition to the punishment provided for such crime of violence ... if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years." 18 U.S.C. § 924(c)(1). In order to prove a violation of § 924(c), the government must establish: (1) that the defendant possessed and brandished a firearm; and (2) that he did so during and in relation to a crime of violence. United States v. Strayhorn , 743 F.3d 917, 922 (4th Cir.2014). Under 18 U.S.C. § 924(c)(3), a "crime of violence" is any felony:

(A) [that] has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Id. Subsection (A) and subsection (B) of § 924(c)(3) are commonly referred to as the "force clause" and the "residual clause," respectively.

Defendant's conviction pursuant to the force clause of § 924(c) was predicated on Count 2, murder in aid of racketeering activity, in violation of 18 U.S.C. §§ 1959(a)(1) and (2).

On June 26, 2015, nearly six years after defendant's sentence was imposed, the Supreme Court issued its decision in Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), addressing the definition of "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Specifically, the Supreme Court in Johnson held that the ACCA residual clause—the provision that defines a "violent felony" to include an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another," 18 U.S.C. § 924(e)(2)(B)(ii) —is unconstitutionally vague, and therefore that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." Id. at 2563. Thereafter, on April 18, 2016, the Supreme Court held that Johnson announced a new "substantive rule that has retroactive effect in cases on collateral review." Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

On June 24, 2016, shortly after the Supreme Court's decision in Welch , defendant filed a motion pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentences imposed on him for his conviction pursuant to § 924(c) on the ground that the Supreme Court's decision in Johnson operates to invalidate this conviction. Specifically, defendant contends that the residual clause of § 924(c) is indistinguishable from the ACCA residual clause, and accordingly, the residual clause of § 924(c) is unconstitutionally vague under the rationale of Johnson.

On July 14, 2016, the government filed a motion to dismiss defendant's § 2255 motion on the ground that collateral review of defendant's sentence or conviction is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255(f).

II.

The government's motion to dismiss raises a threshold issue as to whether defendant's § 2255 motion is timely. Because defendant filed his § 2255 motion approximately a decade after his sentences of conviction and judgment became final, his § 2255 motion would typically be barred by the one-year limitations period set forth in 28 U.S.C. § 2255(f)(1). Yet, defendant contends that his § 2255 motion is timely because pursuant to 28 U.S.C. § 2255(f)(3), the limitations period runs from June 26, 2015, the date Johnson was decided. In this regard, § 2255(f)(3) provides that a one-year limitations period runs from "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." Id.⁴

The Fourth Circuit has explained that "to obtain the benefit of the limitations period stated in § 2255(f)(3), [a movant] must show: (1) that the Supreme Court recognized a new right; (2) that the right ‘has been ... made retroactively applicable to cases on collateral review’; and (3) that [the movant] filed his motion within one year of the date on which the Supreme Court recognized the right." United States v. Mathur , 685 F.3d 396, 398 (4th Cir.2012) (quoting § 2255(f)(3) ). Importantly, however, there is a question as to the meaning of the term "right" as used in § 2255(f)(3). As neither the Supreme Court nor the Fourth Circuit has grappled with this question,⁵ it is appropriate, indeed necessary, to do so here.⁶

The Supreme Court has made clear that when interpreting a statute, "the starting point ... is the language itself." Consumer Prod . Safety Comm'n v. GTE Sylvania, Inc. , 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). In this regard, it is axiomatic that "[i]f the statutory language is plain," a court "must enforce it according to its terms." King v. Burwell , ––– U.S. ––––, 135 S.Ct. 2480, 2489, 192 L.Ed.2d 483 (2015). At the same time, the Supreme Court has recently explained that statutory interpretation properly proceeds "with reference to the statutory context, ‘structure, history, and purpose,’ " as well as "common sense." Abramski v. United States , ––– U.S. ––––, 134 S.Ct. 2259, 2267, 189 L.Ed.2d 262 (2014) (quoting Maracich v. Spears , ––– U.S. ––––, 133 S.Ct. 2191, 2209, 186 L.Ed.2d 275 (2013) ). Thus, "although the analysis properly focuses on the text, the analysis is not necessarily limited to the text." Angiotech Pharms. Inc. v. Lee , 191 F.Supp.3d 509, 521, No. 1:15–cv–1673, 2016 WL 3248352, at *9 (E.D.Va. June 8, 2016).

A.

Statutory analysis of § 2255(f)(3) properly begins with the text and the "fundamental" principle that "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States , 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979). In this regard, the term "right" as used in § 2255(f)(3) is generally understood to refer to a legally protected interest that one may claim against another.⁷ Yet, it has long been recognized that the term "right" is ambiguous;⁸ depending on the context, for example, a right can be framed broadly or narrowly. See, e.g. , Washington v. Glucksberg , 521 U.S. 702, 719–21, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (cautioning that courts must articulate fundamental rights narrowly in the substantive due process context). As relevant here, the term "right" in § 2255(f)(3) could refer (i) to the right asserted by defendant not to be incarcerated pursuant to § 924(c) in light of Johnson , or (ii) the broader principle underlying Johnson that due process requires fair notice of prohibited conduct.

The choice between these alternatives is significant here. If "right" refers to a broad principle rather than a narrow application of that principle to a specific statute, then the "right" on which defendant relies is not "newly recognized," as § 2255(f)(3) requires, and therefore defendant cannot avail himself of § 2255(f)(3)'s limitations period. This is so because the broad principle at issue in Johnson —the Due Process Clause's...