Cancel-Marrero v. United States

333 F. Supp. 3d 40
CourtUnited States District Court
DecidedSeptember 21, 2018
DocketCIVIL NO. 17-1164 (PG); Related Crim. No. 00-061-1 (PG)
StatusPublished

This text of 333 F. Supp. 3d 40 (Cancel-Marrero v. United States) is published on Counsel Stack Legal Research, covering United States District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cancel-Marrero v. United States, 333 F. Supp. 3d 40 (usdistct 2018).

Opinion

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 *42to 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

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hill v. United States
368 U.S. 424 (Supreme Court, 1962)
Gonzales v. Duenas-Alvarez
549 U.S. 183 (Supreme Court, 2007)
United States v. Mitchell
23 F.3d 1 (First Circuit, 1994)
Ellis v. United States
313 F.3d 636 (First Circuit, 2002)
United States v. Cruzado-Laureano
404 F.3d 470 (First Circuit, 2005)
United States v. Guido Iozzi, Jr.
420 F.2d 512 (Fourth Circuit, 1970)
United States v. Sharon Kay Simpson
979 F.2d 1282 (Eighth Circuit, 1992)
United States v. Jesus Torres-Miguel
701 F.3d 165 (Fourth Circuit, 2012)
United States v. Fish
758 F.3d 1 (First Circuit, 2014)
United States v. Castleman
134 S. Ct. 1405 (Supreme Court, 2014)
Johnson v. United States
576 U.S. 591 (Supreme Court, 2015)
United States v. Abdul Howard
650 F. App'x 466 (Ninth Circuit, 2016)
United States v. Darryl House
825 F.3d 381 (Eighth Circuit, 2016)
United States v. Anthony Robinson
844 F.3d 137 (Third Circuit, 2016)
United States v. Gooch
850 F.3d 285 (Sixth Circuit, 2017)
United States v. Ellison
866 F.3d 32 (First Circuit, 2017)
Hunter v. United States
873 F.3d 388 (First Circuit, 2017)
United States v. Donald Covington
880 F.3d 129 (Fourth Circuit, 2018)
Johnson v. United States
176 L. Ed. 2d 1 (Supreme Court, 2010)

Cite This Page — Counsel Stack

Bluebook (online)
333 F. Supp. 3d 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cancel-marrero-v-united-states-usdistct-2018.