Cardenas v. United States

AMADO CARDENAS, Movant, v. UNITED STATES OF AMERICA, Respondent.

CASE NO. 19-10183-CV-KING

CASE NO. 13-10013-CR-KING

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

February 25, 2021

MAGISTRATE JUDGE REINHART

REPORT OF MAGISTRATE JUDGE RECOMMENDING DENIAL OF MOTION TO VACATE-28 U.S.C. § 2255

I. Introduction

This Cause is before the Court upon Movant Amado Cardenas' ("Movant") pro se Motion to Vacate pursuant to 28 U.S.C. § 2255 ("§ 2255 Motion"). [CV ECF No. 1].¹ Movant pled guilty to being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1), and being a felon in possession of a stolen firearm and ammunition in violation of 18 U.S.C. § 922(j). In the § 2255 Motion, he argues that his convictions should be vacated in light of the United States Supreme Court's decision in Rehaif v. United States, 139 S.Ct. 2191 (2019). [Id.]. Movant claims he did not acknowledge in the plea colloquy, and there was no proof, that he was aware of his illegal status when in possession of the firearms and ammunitions that resulted in his convictions. [Id.]. The Government argues Movant is not entitled to relief because the § 2255Motion is an unauthorized successive filing, and his Rehaif claim is procedurally defaulted or waived. [CV ECF No. 6].

The case has been referred to me for a Report and Recommendation on any dispositive matter pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Civ. P. 72(b). For the reasons set forth below, I recommend that the § 2255 Motion be DENIED.

II. Background

Movant was charged by Second Superseding Indictment with being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) and § 924(e) (Count 1), and felon in possession of a stolen firearm and ammunition, in violation of 18 U.S.C. § 922(j) and § 2 (Count 3).² [CR ECF No. 59]. On July 8, 2014, Movant pleaded guilty as charged without the benefit of a written plea agreement.³ [CR ECF No. 194]. Prior to sentencing, a Presentence Investigation Report ("PSI") found Movant qualified for an enhancement as an Armed Career Criminal which increased his total adjusted offense level to thirty-one and his criminal history category to VI, resulting in an advisory guideline imprisonment range of 188 months to 235 months of imprisonment. [PSI ¶¶ 26-28, 34, 52, 81]. Because of the Armed Career Criminal enhancement, Movant faced a statutory minimum mandatory term of fifteen years and up to a lifetime term of imprisonment as to Count 1, and a term of zero to ten years of imprisonment as to Count 3. [PSI ¶ 80]. Movant was sentenced to a total term of 170 months of imprisonment, consisting of 170 months of imprisonment as to Count 1, and a concurrent term of 120 months ofimprisonment as to Count 3.⁴ [CR ECF No. 108 at 2]. The Judgment was entered on January 9, 2014. [ECF No. 108]. Movant did not appeal.

Instead, in 2016, over two years after entry of Judgment, Movant filed a motion under § 2255 arguing he was entitled to resentencing in light of the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015). See Cardenas v. United States, No. 16-10041-CV-KING (S.D. Fla. 2016). The Government agreed. The Court vacated the January 8, 2014 criminal judgment in United States v. Cardenas, No. 13-10013-CR-KING, and ordered a resentencing hearing. [16cv10051 CV ECF No. 5].

Prior to resentencing, an Amended PSI was prepared removing the Armed Career Criminal enhancement and lowering the total adjusted offense level to twenty-nine, but the criminal history category VI remained unchanged because of Movant's twenty-one criminal history points. [PSI ¶¶ 34, 58]. Statutorily, Movant faced a minimum of zero and up ten years of imprisonment for violation as to Counts 1 and 3. [PSI ¶ 88]. Based on a total offense level twenty-nine and a criminal history category VI, Movant had an advisory guideline range of 151 months to 188 months of imprisonment. [PSI ¶ 89].

Rehearing was scheduled for February 22, 2017. [CR ECF No. 147]. Counsel waived Movant's appearance, which the Court found to be in Movant's best interest because Movant's appearance "would have required difficult and potentially dangerous inmate travel, and. . . there were no disputes between the United States and the Defendant as to the appropriate sentence." [CR ECF No. 148]. Because of the Government's previously filed motion for reduction in sentence based on substantial assistance, the Court further reduced Movant's base offense level totwenty-five, which reduced the advisory guideline range to a term of 110 months to 137 months of imprisonment. [Id.]. The Court then resentenced Movant to two concurrent terms of 120 months of imprisonment, to be followed by three years of supervised release. [Id.]. The Order on resentencing was entered on February 27, 2017. [Id.]. No direct appeal was prosecuted.

Movant returned to this Court over two years later, filing the current § 2255 Motion, in accordance with the mailbox rule, on October 11, 2019, when he signed and handed it to prison officials for mailing.⁵ [CV ECF No. 1 at 10]. The § 2255 Motion was filed within 12 months of the Supreme Court's June 21, 2019, Rehaif decision.

III. Standard of Review

Collateral review pursuant to 28 U.S.C. § 2255 is not a substitute for direct appeal. Thus, "the grounds for collateral attack in a final judgment pursuant to 28 U.S.C. § 2255, are limited." Gayle v. United States, Case No. 19-cv-62904-BLOOM/Reid, 2020 WL 4339359, *3 (S.D. Fla. July 28, 2020). A prisoner is entitled to relief under Section 2255 if the court imposed a sentence that (1) violated the Constitution or the laws of the United States; (2) exceeded its jurisdiction; (3) was in excess of the maximum authorized by law; or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255; McKay v. United States, 657 F.3d 1190, 1194 n. 8 (11th Cir. 2011). So, "[r]elief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)(per curiam)(citing Richards v. United States, 837 F.2d 965, 966 (11th Cir.1998)(per curiam)(internal quotations omitted))). If a court determines it imposed a sentence in violation of Section 2255, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C.§ 2255(b). The Movant, not the Government, bears the burden of establish that vacatur of the conviction or sentence is required. See Beeman v. United States, 871 F.3d 1215, 1221-22 (11th Cir. 2017), rehearing en banc denied by, Beeman v. United States, 899 F.3d 1218 (11th Cir. 2018), cert. denied by, Beeman v. United States, 139 S.Ct. 1168 (2019)..

III. Discussion

The thrust of the § 2255 Motion is that Movant's convictions and sentences are invalid and unconstitutional after Rehaif. In Rehaif, the United States Supreme Court held that, "in a prosecution under . . . § 922(g) . . . the Government must prove both that the defendant knew he possessed a firearm and that he knew that he belonged to the relevant category of persons barred form possessing a firearm." Rehaif, 139 S.Ct. at 2200. Liberally construing the § 2255 Motion, as afforded pro se litigants, Movant alleges that: (1) the Second Superseding Indictment is fatally defective because it did not allege that he knew he was a felon; (2) this omission deprived the Court of jurisdiction over the case; (3) his guilty plea was invalid because the Government did not notify him that it had to prove that he knew he was a felon; and, (4) his convictions no longer qualify as crimes. [ECF No. 1 at p. 6]. In its response, the Government argues Movant is not entitled to relief because the § 2255 Motion is an unauthorized successive filing, and his Rehaif claim is procedurally defaulted or waived. [CV ECF No. 6]. Movant has not filed a reply.

A. Successive Filing

The Government first argues that this § 2255 Motion should be dismissed as a second, unauthorized successive filing. [CV ECF No. 6 at 5]. As discussed below, this argument is incorrect.

"Before presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion, as required by 28 U.S.C. § 2255, ¶ 8. See Rule 9 Governing Section 2255 Motions in the United States District Courts; see also 28 U.S.C. § 2255(h). However, "the phrase 'second or successive' is not self-defining and does not refer to all habeas applications filed second or successive in time." Stewart v. United States, 646 F.3d 856, 859 (11th Cir. 2011)(citing Panetti v. Quarterman, 551 U.S. 930, 943-44 (2007)). Also, for purposes of the Antiterrorism and Effective Death Penalty Act ("AEDPA") limitations period, "there is one judgment, comprised of both the sentence and conviction." Insignares v. Sec'y, Fla. Dep't of Corr., 755 F.3d 1273, 1281 (11th Cir. 2014)(citing Ferreira v. Sec'y, Dep't of Corr., 494 F.3d 1286, 1292 (11th Cir. 2007)). A change to a sentence after its imposition can result in a "new judgment" that resets the AEDPA limitations period. See Insignares, 755 F.3d at 1281 ("The limitations provisions of AEDPA 'are specifically focused on the judgment which holds the petitioner in confinement,' and resentencing results in a new judgment that restarts the statute of limitations.")(quoting Ferreira, 494 F.3d at 1292-93).

As noted above, Movant's first § 2255 motion resulted in the vacatur of his 2014 criminal Judgment and sentences. Following a 2017 resentencing hearing, a new intervening Judgment was entered, which imposed a new, reduced term of imprisonment. See Magwood v. Patterson, 561 U.S. 320, 341-42 (2010)(Holding that where "'there is a new judgment intervening...