Carrasco v. United States

190 F. Supp. 3d 351, 2016 U.S. Dist. LEXIS 75425, 2016 WL 3275397
CourtDistrict Court, S.D. New York
DecidedJune 3, 2016
Docket01-CR-0021 (VM), 16-CV-3952 (VM)
StatusPublished
Cited by9 cases

This text of 190 F. Supp. 3d 351 (Carrasco v. United States) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carrasco v. United States, 190 F. Supp. 3d 351, 2016 U.S. Dist. LEXIS 75425, 2016 WL 3275397 (S.D.N.Y. 2016).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge

Victor Manuel Adan Carrasco (“Carras-co”), currently-incarcerated at USP Lom-poc, California, brings this successive pro se motion under 28 U.S.C. Section 2255 (“Section 2255”) challenging the legality of his sentence. (“Motion,” Dkt. No. 222.) He bases his challenge on Johnson v. United States, — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the United States Supreme Court decision that voided the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. Section 924(e)(2)(B)(ii) (“residual clause”), as unconstitutionally vague. (Id. at 4-5.) For the reasons set forth below, the Court DENIES the Motion. Because the Motion is without merit, the Court also declines to transfer it to the United States Court of Appeals for the Second Circuit (“Second Circuit”) for. certification under Sections 2255(h) and 2244(b)(3).

L STANDARD OF REVIEW

A person in federal custody may move to vacate, set aside, or correct his sentence if it was imposed in violation of “the Constitution or laws of the United States,” “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. Section 2255(a).

The Court notes that Carrasco is a pro se litigant. As such, his submission must be held to “less stringent standards than formal pleadings drafted by lawyers.” Ferran v. Town of Nassau, 11 F.3d 21, 22 (2d Cir.1993) (internal citation omitted). The Court must construe Carrasco’s submissions “liberally and' interpret them to raise the strongest arguments that they suggest,” McPherson v. Coombe, 174 F,3d 276, 280 (2d Cir.1999) (internal quotation marks and citation omitted).

A pro se litigant, however, is not exempt “from compliance with relevant rules of procedural and substantive law.” Boddie v. N.Y. State Div. of Parole, 285 F.Supp.2d 421, 426 (S.D.N.Y.2003) (quoting Traguth v. Zuck, 710 F.2d 90, 96 (2d Cir.1983)). Therefore, under Rule 4(b) of the Rules Governing Section 2255 Proceedings, the Court has the authority to review and deny a Section 2255 motion prior to directing an answer “ [i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rule 4(b), Rules Governing Section 2255 Proceedings' for. the United States District Courts, 28 U.S.C. foil. Section 2255 (2004); see Acosta v. Artuz, 221 F.3d 117, 123 (2d Cir.2000).

[353]*353II. DISCUSSION

A. JOHNSON CLAIM

On May 4, 2004, the Honorable Gerard Lynch of this Court sentenced Carrasco to two hundred and sixty four (264) months imprisonment to be followed by five (6) years of supervised release. (Dkt. No. 54.)

Carrasco twice appealed his conviction and sentence. (Dkt. Nos. 58, 65, 93.) On July 11, 2005, the Second Circuit affirmed Carrasco’s conviction and remanded the cáse to Judge Lynch to determine whether or not resentencing was warranted due to the intervening decision in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). (Dkt. No. 71.) Judge Lynch declined to resentence Carrasco (Dkt. No. 92), and the Second Circuit ultimately affirmed Carrasco’s sentence. (Dkt. No. 150.)

On October 5, 2010, Carrasco filed his first motion under Section 2255, asserting ineffective assistance of counsel. (10-cv-8308, Dkt. No, 1.) The Court denied that motion on October 20, 2011. (Dkt. No. 168.)

On March 4, 2015, Carrasco filed a Motion to Reduce Sentence (Dkt. No. 206) and a motion for appointment of counsel (Dkt. No. 207). The Court denied Carras-co’s motions on June 23, 2015, finding that Carrasco was not eligible for a sentence reduction pursuant to Amendments 782 and 788 of the United States Sentencing Guidelines. (Dkt. Nos. 210,211.)

On January 4, 2016, Carrasco filed a second motion to reduce his sentence. (Dkt. No. 217.) The Court denied Carras-co’s second request on February 1, 2016, stating that his second request did not present any new basis on which to grant Carrasco relief. (Dkt. No. 220.)

Carrasco now brings his second motion under Section 2255 and argues) that Johnson should be extended to Section 2Dl,l(b)(l) of the United States Sentencing Guidelines, thereby reducing the two level enhancement Carrasco received at sentencing for possession of a dangerous weapon. (Sentencing Tr,, Dkt. No. 52.)

In Johnson, the Supreme Court held that the residual clause in ACCA was unconstitutional. See — U.S.-, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Under ACCA, a defendant convicted of being a felon in possession of a firearm, a violation pursuant to Section 922 (g) of ACCA, faces a sentencing enhancement if he has three or more previous convictions for a “violent felony,” 18 U.S.C. Section 924(e)(1). A violent felony, as defined in the ACCA’s residual clause, “involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. Section 924(e) (2) (B). Johnson voided this residual clause as unconstitutionally vague because the clause “leaves grave, uncertainty about how to estimate the risk posed by a crime,” Johnson, 135 S.Ct. at 2557, and “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony[,]” id. at 2558.

Johnson strictly applies only to those defendants who are convicted, of being a felon in possession of a firearm in violation of 18 U.S.C. Section 922(g). In the instant case, Carrasco was not convicted of being a felon in possession of a firearm pursuant to 922(g). (See Dkt. No. 54.) Therefore, Johnson .would not apply, and the Supreme Court’s ruling in Johnson would not be relevant on that basis.

However, the Second Circuit has held that Johnson applies when a defendant is sentenced as a career offender under Section 4B1.1, if at least one of the prior convictions was a “crime of violence,” a phrase defined in United States Sentencing Guideline Section 4B1.2. See United States v, Maldonado, 636 Fed.Appx. 807, 809-810 (2d Cir.2016) (“[T]he operative [354]*354language of Guideline § 4B1.2(a)(2)'s residual clause and the ACCA’s residual clause is identical.”).

Again, Johnson is not applicable here because Carrasco was not sentenced as a career offender under Section 4B1.1. (Dkt. No. 54.)

Thus, Carrasco's Motion is DENIED.

B. TRANSFER TO THE SECOND CIRCUIT

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Bluebook (online)
190 F. Supp. 3d 351, 2016 U.S. Dist. LEXIS 75425, 2016 WL 3275397, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carrasco-v-united-states-nysd-2016.