United States v. Espinoza

UNITED STATES OF AMERICA, Plaintiff, v. PAUL XAVIER ESPINOZA, Defendant.

3:13-cr-00037-LRH-WGC

UNITED STATES DISTRICT COURT DISTRICT OF NEVADA

July 12, 2017

ORDER

Before the court is petitioner Paul Xavier Espinoza's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.¹ ECF No. 37. The court finds that Hobbs Act robbery is categorically a crime of violence under the "force clause" under 18 U.S.C. § 924(c). In turn, even if section 924(c)'s "residual clause" is void for vagueness—a question the court does not reach—Espinoza is not entitled to relief. The court will therefore deny his motion but will grant him a certificate of appealability.

I. Background

A. Espinoza's conviction

On January 27, 2014, Espinoza pled guilty to one count of the use of a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c). ECF Nos. 25-26. The United States also charged Espinoza with two counts of interference with commerce by robbery under 18 U.S.C § 1951 ("Hobbs Act robbery"), but pursuant to the parties' plea agreement, the UnitedStates moved to dismiss these counts, which the court granted. ECF Nos. 26, 30. On May 5, 2014, this court sentenced Espinoza to 108 months of imprisonment. ECF Nos. 30, 33.

Pursuant to this district's Amended General Order on April 27, 2016, Espinoza filed an "abridged" motion to vacate in order to toll the statute of limitations under section 2255. ECF No. 36. He subsequently filed a timely full motion to vacate, set aside, or correct his sentence. ECF No. 37.

B. Johnson v. United States and subsequent challenges

Espinoza filed his section 2255 motion in the wake of Johnson v. United States, 135 S. Ct. 2551 (2015). There, the U.S. Supreme Court ruled that a portion of the Armed Career Criminal Act's ("ACCA") violent-felony definition, often referred to as the "residual clause," was unconstitutionally vague (i.e., "void for vagueness").² Johnson, 135 S. Ct. at 2557. The Supreme Court subsequently held that Johnson announced a new substantive rule that applied retroactively to cases on collateral review, Welch v. United States, 136 S. Ct. 1257 (2016), thus allowing defendants to challenge their ACCA convictions under section 2255. See, e.g., United States v. Avery, No. 3:02-CR-113-LRH-VPC, 2017 WL 29667 (D. Nev. Jan. 3, 2017).

Moreover, Johnson also sparked challenges to other federal criminal statutes and sections of the U.S. Sentencing Guidelines ("U.S.S.G.") that incorporate a "crime-of-violence" definition that includes a residual clause similar or identical to the ACCA's. One such case relevant to this motion is Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137 S. Ct. 31 (2016). There, the Ninth Circuit addressed a challenge to the residual clause found in 18 U.S.C. § 16(b), which is similar but not identical to the ACCA's residual clause. Dimaya, 803 F.3d at 1111-12. The court ultimately held that section 16(b)'s clause was also void for vagueness. Id. at 1119.

///

/// Last year, the U.S. Supreme Court granted certiorari in Dimaya and heard arguments in early 2017. Lynch v. Dimaya, 137 S. Ct. 31 (2016). However, instead of issuing a decision, the Court set the case for re-argument for its next term.

As the instant motion demonstrates, Johnson and Dimaya have also led to challenges to the residual clause found in 18 U.S.C. § 924(c), which is nearly identical to the section 16(b) residual clause that the Ninth Circuit held void for vagueness in Dimaya. While a challenge to section 924(c) is currently before the Ninth Circuit, the court has deferred ruling on the issue until the Supreme Court decides Dimaya. United States v. Begay, No. 14-10080, ECF No. 87 (9th Cir. 2017); see also United States v. Begay, 2016 WL 1383556 (9th Cir. 2016).

II. Legal standard

Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, or correct a sentence if "the sentence was imposed in violation of the Constitution or laws of the United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Id. § 2255(b).

Section 2255 creates a one-year statute of limitations. Id. § 2255(f). When a petitioner seeks relief pursuant to a right recognized by a U.S. Supreme Court decision, the statute of limitations runs from "the date on which the right asserted was initially recognized by the . . . Court, if that right has been . . . made retroactively applicable to cases on collateral review . . . ." Id. § 2255(f)(3). The petitioner bears the burden of demonstrating that his petition is timely and that he is entitled to relief. Ramos-Martinez v. United States, 638 F.3d 315, 325 (1st Cir. 2011).

III. Discussion

Under 18 U.S.C. § 924(c)(1)(A), it is a felony to use or carry a firearm "during and in relation to any crime of violence . . . ." This statute therefore creates an offense separatelypunishable from another concurrently-charged offense that the indictment alleges is a crime of violence. Section 924(c) defines "crime of violence" as a felony that

(A) 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.

18 U.S.C. § 924(c)(3). The first clause in this definition is commonly referred to as either the "force clause" or "elements clause," while the second clause is the aforementioned residual clause. Because the definition is worded disjunctively, a felony need only categorically match³ one of the two clauses in order to constitute a crime of violence and thus satisfy that element under section 924(c)(1)(A).

Here, one of the dismissed charges of Hobbs Act robbery served as the underlying crime of violence for Espinoza's section 924(c) conviction. See ECF No. 1 at 2. The Hobbs Act "prohibits any robbery or extortion or attempt or conspiracy to rob or extort that 'in any way or degree obstructs, delays or affects commerce or the movement of any article or commodity in commerce.'" United States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004) (quoting 18 U.S.C. § 1951(a)). The statute defines robbery as follows:

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).

Espinoza now challenges his section 924(c) conviction under section 2255, arguing that Hobbs Act robbery can no longer be considered a crime of violence under modern authority. He first contends that the court may not apply the statute's residual clause because it is void for vagueness in light of the U.S. Supreme Court's decision in Johnson and the Ninth Circuit's decision in Dimaya. He further argues that bank robbery is not a categorical match for the force clause because it may be committed (1) through the use of nominal (i.e., less-than-violent) force and (2) through reckless and thus unintentional conduct.

Espinoza's claim for relief is dependent on his argument that section 924(c)'s residual clause is void for vagueness. It is that premise that would allow Espinoza to collaterally attack his sentence under section 2255. However, this court need not reach this question because, even if the residual clause is void, this court has already held that Hobbs Act robbery satisfies the force clause under 924(c) and is therefore a crime of violence.⁴ United States v. Mendoza, No. 2:16-CR-00324-LRH-GWF, 2017 WL 2200912 (D. Nev. May 19, 2017). And because Espinoza has not raised any arguments that the court did not previously address, it will apply its holding in Mendoza to this case and deny his motion. Nonetheless, the court will provide an overview of why Hobbs Act robbery satisfies the force clause.

A. Ninth Circuit precedent forecloses Espinoza's claim for relief

As in Mendoza, one of Espinoza's primary arguments is that Hobbs Act robbery does not comport with the force clause because it may be committed by instilling the fear of injury in the victim. He contends that a defendant may therefore commit the crime without the actual or threatened use of violent force. ECF No. 37 at 16-21. Espinoza, however, has failed to address the Ninth Circuits' holdings in United States v. Selfa, 918 F.2d 749 (9th Cir. 1990) and United States v. Howard, 650 F. App'x 466 (9th Cir. 2016).

As in this case, the defendant in Howard argued that Hobbs Act robbery is not a categorical match for section 924(c)'s force clause because the crime "may also be accomplishedby putting someone in 'fear of injury' . . . ." Howard, 650 F. App'x at 468 (quoting 18 U.S.C. § 1951(b)). The Ninth Circuit held that this argument was "unpersuasive and . . . foreclosed by" the court's previous published decision in United States v. Selfa, 918 F.2d 749 (9th Cir. 1990).

There, the court "held that the analogous federal bank robbery statute, which may be violated by 'force and violence, or by intimidation' qualifies as a crime of violence under U.S.S.G. § 4B1.2, which uses the nearly identical definition of 'crime of violence' as § 924(c)." Id. (emphasis in original) (internal citation omitted) (citing Selfa, 918 F.2d at 751). The court...