Baustamante v. United States

• Court: District Court, D. Nevada
• Decided: December 7, 2020
• Docket: 2:20-cv-00841
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 UNITED STATES OF AMERICA, Case No.: 2:16-cr-00268-APG

4 Plaintiff ORDER DENYING MOTION TO VACATE 5 v. [ECF No. 59] 6 ROBERT BAUSTAMANTE,

7 Defendant

8 Defendant Robert Baustamante pleaded guilty to being a felon in possession of a firearm 9 in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). He moves under 28 U.S.C. § 2255 to 10 vacate his conviction and sentence. ECF No. 59. He argues that, based on the Supreme Court’s 11 holding in Rehaif v. United States, 139 S. Ct. 2191 (2019), his indictment is fatally defective 12 because the government failed to allege that he knew he was a felon when he possessed the 13 firearm. 14 I deny Baustamante’s motion. The indictment is defective under Rehaif because it fails 15 to allege that Baustamante knew he was a felon. That defect did not deprive this court of 16 jurisdiction. And Baustamante cannot show that he is actually prejudiced by that defect. 17 Background

18 As Baustamante conceded at his sentencing, he has a “long criminal history.” He already 19 had, at that time, seven felony convictions, the first of which he received in 1985.1 Of particular 20 relevance to the present motion, Baustamante had at least two convictions for which he both was 21 sentenced to and actually served more than one year of incarceration before he committed the 22 instant offense. In 2008, he was convicted of felony DUI, received a sentence of 33 months, and 23

1 He also had 14 misdemeanor convictions. 1 served nearly two years in incarceration. In 2013, Baustamante was convicted of felony 2 attempted possession of a stolen vehicle, receiving a sentence of 14 to 35 months. He served 15

3 months of that sentence in prison. 4 The indictment in the present case alleged that in January 2015, Baustamante: 5 having been convicted of crimes punishable by imprisonment for a term exceeding one year . . . did knowingly possess a firearm . . . said possession being in and affecting 6 interstate commerce and said firearm having been shipped and transported in interstate commerce, all in violation of Title 18, United States Code, Sections 922(g)(1) and 7 924(a)(2).

8 ECF No. 1. In August 2017, Baustamante pleaded guilty to that charge. ECF Nos. 36, 37. I 9 sentenced him to 57 months of imprisonment, to be followed by three years of supervised 10 release. Baustamante appealed. The Ninth Circuit dismissed that appeal, finding that he waived 11 his right to appeal his conviction and sentence and that the record “disclose[d] no arguable issue 12 as to the validity of the waiver.” In May 2020, Baustamante filed the instant motion seeking to 13 set aside his conviction and sentence based on Rehaif. 14 Analysis

15 Baustamante was indicted, pleaded guilty, and was sentenced in 2017 for his possession 16 of a firearm as a convicted felon. At that time, under the law of this circuit and every other 17 circuit, the government was neither required to allege in the indictment nor present evidence and 18 prove at trial that the defendant knew of his status as a convicted felon. Two years later, the 19 Supreme Court held “that in a prosecution under 18 U.S.C. § 922(g) and § 924(a)(2), the 20 Government must prove both that the defendant knew he possessed a firearm and that he knew 21 22 23 2 1 he belonged to the relevant category of persons barred from possessing a firearm.” Rehaif, 139 S. 2 Ct. at 2200.2

3 The indictment against Baustamante did not allege that he knew he had been convicted of 4 a crime punishable by more than one year of imprisonment. Under Rehaif, the indictment is 5 defective because it lacks an allegation that he knew he had been convicted of a crime punishable 6 by imprisonment for a term exceeding one year. Baustamante argues he is entitled to relief 7 because this defect stripped this court of jurisdiction and because the defect violated his rights 8 under the Fifth and Sixth Amendments. Neither of these theories warrants § 2255 relief.3 9 This court “has jurisdiction of all crimes cognizable under the authority of the United 10 States . . . .” Lamar v. United States, 240 U.S. 60, 65 (1916). “The objection that the indictment 11 does not charge a crime against the United States goes only to the merits of the case” and does 12 not deprive the court of jurisdiction. Id.; see also United States v. Cotton, 535 U.S. 625, 630

13 (2002) (citing Lamar for the proposition that “defects in an indictment do not deprive a court of 14 its power to adjudicate a case.”). The Ninth Circuit has repeatedly cited Cotton for this principle. 15 See, e.g., U.S. v. Velasco-Medina, 305 F.3d 839, 845 (9th Cir. 2002) (rejecting the argument that 16 the indictment’s failure to allege the specific intent required for attempted reentry deprived the 17 district court of jurisdiction). It applies even when considering appeals based on Rehaif. See, 18 2 “It is therefore the defendant’s status, and not his conduct alone, that makes the difference. 19 Without knowledge of that status, the defendant may well lack the intent needed to make his behavior wrongful.” Rehaif, 139 S. Ct. at 2197 (emphasis original). I reject Baustamante’s 20 argument that, under Rehaif, the government must also prove that the defendant knew that he was barred from possessing a firearm. See United States v Dillard, No. 2:09-cr-00057-JAD- 21 GWF, 2020 WL 2199614, at *4 (D. Nev. May 6, 2020). 22 3 Baustamante seeks relief solely because, under Rehaif, the indictment is now recognized as defective. He does not challenge the sufficiency of the evidence supporting his plea or 23 conviction. 3 1 e.g., United States v. Espinoza, 816 F. App’x 82, 84 (9th Cir. 2020) (“[T]he indictment’s 2 omission of the knowledge of status requirement did not deprive the district court of

3 jurisdiction.”). This court had and has jurisdiction over Baustamante’s case. 4 Because this § 2255 proceeding is Baustamante’s first challenge to his indictment, he 5 must show cause and actual prejudice.4 “To challenge a conviction in a § 2255 proceeding based 6 upon a claim of error that could have been raised on direct appeal but was not, a defendant must 7 demonstrate both cause to excuse the procedural default, as well as actual prejudice resulting 8 from that error.” United States v. Seng Chen Yong, 926 F.3d 582, 590 (9th Cir. 2019). “‘Cause’ 9 is a legitimate excuse for the default; ‘prejudice’ is actual harm resulting from the alleged 10 constitutional violation.” Magby v. Wawrzaszek, 741 F.2d 240, 244 (9th Cir. 1984). 11 For purposes of this motion only, I will assume Baustamante can show cause to excuse 12 the default. But Baustamante has not and cannot show he is actually harmed by the defective

13 indictment. 14 15

16 4 Baustamante is not entitled to automatic dismissal of the defective indictment because he did not challenge the indictment prior to pleading guilty. “[I]f properly challenged prior to trial, 17 an indictment’s complete failure to recite an essential element of the charged offense is not a minor or technical flaw subject to harmless error analysis, but a fatal flaw requiring dismissal of 18 the indictment.” United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999); see also United States v. Qazi, 975 F.3d 989, 992 (9th Cir. 2020) (“If a defendant properly challenges an 19 indictment before trial and, on de novo appellate review, we determine the indictment omitted an essential element, Du Bo requires automatic dismissal regardless of whether the omission 20 prejudiced the defendant.”). 21 Baustamante is not entitled to a plain error review of his challenge to his indictment because he did not challenge it on appeal. An untimely challenge to an indictment is reviewed 22 for plain error if it is raised for the first time on appeal. See United States v. Velasco-Medina, 305 F.3d 839, 846 (9th Cir. 2002) (untimely challenge to an indictment on appeal reviewed for 23 plain error); United States v. Ross, 206 F.3d 896, 899 (9th Cir. 2000) (same). 4 1 The government will be able to re-indict Baustamante to allege knowledge-of-status. 2 “[T]he double jeopardy guarantee ‘imposes no limitations whatever upon the power to retry a

3 defendant who has succeeded in getting his first conviction set aside’ (emphasis in original).” 4 United States v. DiFrancesco, 449 U.S. 117, 131, (1980) quoting North Carolina v. Pearce, 395 5 U.S. 711, 720 (1969). The only exception is when a conviction is reversed because of 6 insufficiency of the evidence. Baustamante has not challenged the sufficiency of the facts he 7 admitted in his guilty plea.5 8 I can consider the entire record to determine whether Baustamante is being actually 9 harmed by the defective indictment. The Ninth Circuit recently reviewed an appeal of a § 922(g) 10 conviction based on Rehaif. Johnson, 979 F.3d 632 (9th Cir. 2020). The defendant was 11 convicted after a bench trial on stipulated facts that did not include his knowledge-of-status. The 12 Ninth Circuit declined to dismiss the case and instead affirmed the conviction. The court

13 determined that Johnson’s appeal was properly understood as asserting a trial error arising from 14 the district court’s omission of “the knowledge-of-status element now required under Rehaif.”6 15 Id. at 636. Because Johnson had not timely objected to the district court’s legal error, his claim 16 was subject to plain error review. Id. Finally, as the challenge concerned a trial error rather than 17 insufficient evidence, “retrial would be permitted even if he succeeded in establishing plain error 18 5 Baustamante’s challenge would fail even if he had challenged the sufficiency of his 19 guilty plea. A challenge to the sufficiency of the evidence is “assessed against the elements that the government was required to prove at the time of trial.” United States v. Johnson, 979 F.3d 20 632, 636 (9th Cir. 2020). When assessed at the time of his plea, Baustamante admitted sufficient facts to sustain a conviction for being a felon in possession of a firearm. 21 6 While Johnson framed his claim as challenging the sufficiency of the evidence, the Ninth 22 Circuit re-framed his claim as he had not contested whether “the government introduced evidence sufficient to satisfy each of the elements required for conviction at the time of his trial.” 23 Id. at 636. 5 1 on appeal.” Id. at 637. As retrial was available, the court was authorized to review the entire 2 record on appeal, not just the record adduced at trial. Id. Reviewing for plain error, the court

3 held that a retrial would result in the same conviction because the defendant could not offer a 4 plausible basis for a different outcome. Id. at 639. 5 [I]f the hypothetical retrial is certain to end in the same way as the first one, then refusing to correct an unpreserved error will, by definition, not result in a 6 miscarriage of justice. Indeed, choosing to correct the error in those circumstances would produce the very sort of wasteful reversals that [Federal 7 Rule of Criminal Procedure] 52(b) aims to avoid.

8 Id. at 637 (internal quotation and citation omitted).7 The record on appeal (including the 9 Presentence Report) showed that Johnson had several prior felony convictions and had already 10 served three prison sentences of over one year. “In light of the sentences imposed in his earlier 11 cases, Johnson cannot plausibly argue that a jury . . . would find that he was unaware of his 12 status as someone previously convicted of an offense punishable by more than a year in prison.” 13 Id. at 639. That evidence justified affirming the conviction even though the stipulated facts in 14 the bench trial did not establish Johnson’s knowledge-of-status. 15 The Johnson court employed the plain error standard because the case arose on direct 16 appeal and the defendant failed to object at trial. Id. at 636. Here, however, Baustamante raises 17 this issue in a § 2255 motion. The “cause and actual prejudice” standard for review of a § 2255 18 motion is a significantly higher burden than the plain error standard on a direct appeal. United 19 States v. Frady, 456 U.S. 152, 166-67 (1982) (“We reaffirm the well-settled principle that to 20 obtain collateral relief a prisoner must clear a significantly higher hurdle than would exist on 21

22 7 “As the Supreme Court has stated, Rule 52(b) authorizes courts to correct unpreserved errors, but that power is to be used sparingly, solely in those circumstances in which a miscarriage of 23 justice would otherwise result.” Johnson, 963 F.3d at 852. 6 1 direct appeal.”).8 Johnson would require me to deny Baustamante’s motion under a plain error 2 review, so I likewise must deny the motion under the higher hurdle of the cause and prejudice

3 standard. 4 As in Johnson, I can look to the entire record, including the Presentence Report, to 5 determine whether Baustamante can show actual prejudice from the defective indictment. 6 Johnson, 979 F.3d at 637. According to the Presentence Report, Baustamante has been 7 convicted on seven different occasions of offenses for which he could have been imprisoned for 8 more than one year. For at least two of those occasions, he was actually sentenced to a term of 9 imprisonment exceeding one year: in 2008, to a term of 33 months, and in 2013 to a term of 14- 10 35 months. For each of these sentences, Baustamante actually served more than one year. 11 Baustamante offers no evidence or argument disputing this criminal history. He does not claim 12 he was unaware that he had been convicted of a felony or that he actually served at least two

13 different sentences that each exceeded one year of imprisonment. To the contrary, he admits that 14 “[a]t the time [he] was in possession of the firearm, he had been previously convicted of a crime 15 punishable by a term of imprisonment exceeding one year.” ECF No. 37 at 4. No plausible 16 argument exists that a grand jury would find that he was unaware of his status as a convicted 17 felon. If I dismiss the indictment, he could be reindicted and retried, and the result would be the 18 same. 19 Again, I assume Baustamante can show cause for failing to challenge his indictment in 20 his appeal. And under Rehaif, the indictment is defective because it lacks an allegation that 21

22 8 Cf. United States v. Timmreck, 441 U.S. 780, 784 (1979) (“[T]he concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty 23 pleas.”). 7 1 Baustamante knew he had been convicted of a crime punishable by imprisonment for a term 2 exceeding one year. But the overwhelming and uncontroverted evidence establishes that

3 Baustamante is not suffering actual prejudice because of that defect under any of his theories. I 4 therefore deny his § 2255 motion. 5 Certificate of Appealability 6 To appeal this order, Baustamante must receive a certificate of appealability. 28 U.S.C. 7 § 2253(c)(1)(B); Fed. R. App. P. 22(b)(1); 9th Cir. R. 22–1(a). To obtain that certificate, he 8 “must make a substantial showing of the denial of a constitutional right, a demonstration that . . . 9 includes showing that reasonable jurists could debate whether (or, for that matter, agree that) the 10 petition should have been resolved in a different manner or that the issues presented were 11 adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 483– 12 84 (2000) (quotation omitted). This standard is “lenient.” Hayward v. Marshall, 603 F.3d 546,

13 553 (9th Cir. 2010) (en banc). 14 I have denied Baustamante’s motion based on the Ninth Circuit’s decision in Johnson. 15 While Johnson employed the plain error standard of review, Baustamante faces a “significantly 16 higher hurdle” for his § 2255 motion. Frady, 456 U.S. at 166. The undisputed facts establish that 17 Baustamante is not prejudiced by the defective indictment because he could be reindicted and 18 retried and the outcome would be the same. Reasonable jurists cannot debate that conclusion. I 19 will thus deny Baustamante’s request for a certificate of appealability. 20 I THEREFORE ORDER that defendant Robert Baustamante’s motion under 28 U.S.C. 21 § 2255 (ECF No. 59) is DENIED. 22 I FURTHER ORDER that Baustamante is denied a certificate of appealability.

23 8 1 I FURTHER ORDER the Clerk of Court to enter a separate civil judgment denying 2|| Baustamante’s § 2255 motion. The Clerk also shall file this order and the civil judgment in this case and in the related civil case number 2:20-cv-0841-APG. 4 DATED this 7th day of December, 2020. 5 OIE 6 ANDREWP.GORDON ———s UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23