Cancel-Marrero v. United States, CIVIL NO. 17-1164 (PG)

333 F.Supp.3d 40

Miguel CANCEL-MARRERO, Petitioner

v.UNITED STATES of America, Respondent.

CIVIL NO. 17-1164 (PG)

Related Crim. No. 00-061-1 (PG)

United States District Court, D. Puerto Rico.

Signed September 21, 2018

Jessica Earl, Federal Public Defender, San Juan, PR, for Petitioner.

Mariana E. Bauza, United States Attorneys Office, District of Puerto Rico, San Juan, PR, for Respondent.

OPINION AND ORDER

JUAN M. PEREZ-GIMENEZ, SENIOR U.S. DISTRICT JUDGE

Before the court is petitioner Miguel Cancel-Marrero's (henceforth "Petitioner" or "Cancel-Marrero") motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1) and the United States' (or the "government") opposition thereto (Docket No. 4). For the following reasons, the court DENIES Petitioner's motion to vacate.

I. BACKGROUND

On April 14, 2000, Cancel-Marrero and his co-defendants were indicted for aiding and abetting in an armed carjacking, in violation of 18 U.S.C. § 2119(1) ("Count One"); aiding and abetting in the use and brandishing of a firearm in furtherance of a "crime of violence" (i.e. , the carjacking charged in Count One) in violation of 18 U.S.C. § 924(c)(1)(A)(ii) ("Count Two"); aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) ("Count Three"); and aiding and abetting in the use and brandishing of a firearm in furtherance of a "crime of violence" (i.e. , the Hobbs Act robbery charged in Count Three) in violation of 18 U.S.C. § 924(c)(1)(A) ("Count Four"). See Crim. No. 00-061 (PG), Docket No. 29.

On August 29, 2000, Cancel-Marrero pled guilty to Counts Three (Hobbs Act robbery) and Four (the second "crime of violence" charge). See Crim. No. 00-061 (PG), Docket No. 79. He was sentenced to eighty-seven months as to Count Three, and eighty four as to Count Four, to be served consecutively with each other, for a total of 171 months. See Crim. No. 00-061 (PG), Docket No. 92.

In a separate case, Cancel-Marrero pled guilty to aiding and abetting armed carjacking, 18 U.S.C. § 2119(1). See Crim. No. 00-087 (PG), Dockets No. 76-77. In that case, the court sentenced Cancel-Marrero to a term of eighty seven (87) months to be served consecutively to the 171-month sentence imposed in Crim. No. 00-061 (PG), the case that is presently being attacked collaterally. As a result, Cancel-Marrero's total term of imprisonment is of 258 months. On April 25, 2002, Cancel-Marrero appealed his convictions for both cases, which were subsequently affirmed by the First Circuit Court of Appeals. See Crim. No. 00-061 (PG), Docket No. 109; Crim. No. 00-087 (PG), Docket No. 137. On February 3, 2017, Petitioner filed his present motion to correct sentence alleging that his conviction and sentence as to Count Four in Crim. No. 00-061 (PG) must be vacated in light of Johnson v. United States, ––– U.S. ––––, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson II"). See Docket No. 1. Cancel-Marrero did not request relief for his conviction in Crim. No. 00-087 (PG).

II. STANDARD OF REVIEW

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his sentence "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." 28 U.S.C. § 2255(a) ; Hill v. United States, 368 U.S. 424, 426-427, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) ; Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002).

III. DISCUSSION

In his motion to correct sentence under 28 U.S.C. § 2255, Cancel-Marrero challenges his sentence and conviction as to Count Four. Specifically, Cancel-Marrero contends that aiding and abetting Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) cannot be considered a "crime of violence" pursuant to 18 U.S.C. § 924(c).

A. Void for Vagueness Challenge

Firstly, Petitioner contends that Hobbs Act robbery cannot be considered a "crime of violence" under § 924(c)'s residual clause, found in 18 U.S.C. § 924(c)(3)(B), because it is allegedly unconstitutionally vague in light of Johnson II.¹ Petitioner bases his argument on the premise that § 924(c)'s residual clause is substantively similar to the ACCA's residual clause, § 924(e), which was struck down for vagueness in Johnson II. As the following analysis will showcase, the court need not reach the merits of Petitioner's void-for-vagueness challenge regarding § 924(c)'s residual clause because Hobbs Act robbery categorically qualifies as a "crime of violence" under § 924(c)'s "force clause" in 18 U.S.C. § 924(c)(3)(A).

B. Hobbs Act Robbery

The statute defining Hobbs Act robbery provides, in pertinent part:

The term "robbery" means the unlawful taking or obtaining of personal property from the person or in the presence of another, against his will, by means of actual or threatened force, or violence, or fear of injury , immediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or member of his family or of anyone in his company at the time of the taking or obtaining.

18 U.S.C. § 1951(b)(1) (emphasis added). Furthermore, § 924(c)'s force clause defines a "crime of violence" as a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). Petitioner presents four arguments challenging the classification of Hobbs Act robbery as a "crime of violence" under § 924(c)'s force clause, and each shall be attended to in turn.

1. Fear of Injury to a Person

First, Cancel-Marrero argues that Hobbs Act robbery cannot qualify as a "crime of violence" under § 924(c)'s force clause because the felony can be committed by putting someone in "fear of injury" to his person, which allegedly does not require violent physical force, as defined in Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ( Johnson I ).² Under the categorical approach, if the least violent conduct penalized by a statute fails to constitute a "crime of violence," then the statute categorically fails to qualify as a "crime of violence." See United States v. Torres-Miguel, 701 F.3d 165, 167 (4th Cir. 2012). Hence, Petitioner contends that if Hobbs Act robbery can be committed by putting someone in "fear of injury" to his person, and doing so does not require the use, attempted use, or threatened use of physical force, then said statute fails to categorically qualify as a "crime of violence" under the force clause in § 924(c)(3)(A).

In support of his argument, Petitioner relies heavily on the Fourth Circuit's decision in United States v. Torres-Miguel, 701 F.3d 165 (4th Cir. 2012), which held that physical injury, even death, can be caused without the use of violent force. See id. at 168-69. Specifically, the Court in Torres-Miguel held that "[a]n offense that results in physical bodily injury, but does not involve the use or threatened use of force, simply does not meet the Guidelines definition of crime of violence." Id. at 168. As an example, the Fourth Circuit mentions that a defendant could cause injury or death to someone by poisoning him, which does not require the use of physical force. See id. Petitioner concludes that an individual could place another in "fear of injury" to his person by threatening to poison him, expose him to hazardous chemicals, or lock him up inside a car on a hot day, none of which, he argues, require the use or threat to use physical force. See Docket No. 1 at 14.

Cancel-Marrero's argument that it is possible to commit Hobbs Act robbery by placing someone in "fear of injury" to his person without using or threatening to use physical force holds no water. The Court's reasoning in Torres-Miguel that the phrase "use of physical force" does not include "indirect applications" of force, such as in the case of poisoning, was abrogated by United States v. Castleman, 572 U.S. 157, 134 S.Ct. 1405, 188 L.Ed.2d 426 (2014). See United States v. Covington, 880 F.3d 129, 134-35 (4th Cir. 2018). Threatening to poison someone would still constitute a threat to use physical force because the use of force is not "the act of ‘sprink[ling]’ the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter." Castleman, 572 U.S. at 171, 134 S.Ct. 1405. Furthermore, for purposes of the Hobbs Act robbery statute, "[a] ‘fear of injury’ means fearing injury that will be produced by violent force, that is, force capable of causing physical pain or injury." United States v. Williams, 179 F.Supp.3d 141, 152 (D.Me. 2016).See United States v. Pena, 161 F.Supp.3d 268, 279 (D.N.Y. 2016) (stating that "the text, history, and context of the Hobbs Act compel a reading of the phrase "fear of injury" that is limited to fear of injury from the use of force"). Finally, the "fear of injury" in Hobbs Act robbery "encompasses a fear of injury produced by physical force that is one step removed from, but caused by, the physical force of the offender." Williams, 179 F.Supp.3d at 153. As such, a person that commits Hobbs Act robbery by instilling onto his victim the fear of being poisoned, exposed to chemicals, or locked in a hot car is necessarily threatening to use physical force. It does not matter if the injury feared by the victim is to be the direct or indirect result of the perpetrator's use of physical force.

This court cannot imagine a reasonably realistic scenario in which an individual could commit a Hobbs Act robbery by instilling onto someone a "fear of injury" to his person, where said injury is not to be caused by physical force. See United States v. Ellison, 866 F.3d 32, 38 (1st Cir. 2017) (holding that "we are not supposed to imagine ‘fanciful, hypothetical scenarios’ in assessing...