Durazo v. United States

• Court: District Court, D. Utah
• Decided: February 9, 2022
• Docket: 2:16-cv-00616
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT DISTRICT OF UTAH

ROBERT LONI DURAZO, MEMORANDUM DECISION AND Petitioner, ORDER LIFTING STAY AND vs. ORDER TO SHOW CAUSE

UNITED STATES OF AMERICA, Case No. 2:16-cv-00616 Respondent. Related Case No. 2:08-cr-00514

Judge Clark Waddoups

I. LIFTING STAY On June 14, 2016, Petitioner Robert Loni Durazo filed a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (hereinafter “Motion to Vacate”) based on Johnson v. United States, 576 U.S. 591 (2015). Mr. Durazo pled guilty “to five counts of Hobbs Act Robbery in violation of 18 U.S.C. § 1951 and one count of unlawfully using a firearm during and [in] relation to a ‘crime of violence’ in violation of 18 U.S.C. § 924(c).” Mot. to Correct Sentence, at 1 (ECF No. 1). Mr. Durazo was sentenced to 156 months imprisonment for these crimes. Judgment, at 2 (ECF No. 75 in Case No. 2:08-cr-514). Mr. Durazo initially asserted his “§ 924(c) conviction should be vacated because Hobbs Act robbery cannot be classified as a crime of violence under [Johnson].” Mot. to Vacate, at 2 (ECF No. 1 in Case No. 2:16-cv-616). Although Johnson pertained to the residual clause in the Armed Career Criminal Act, Mr. Durazo asserted “§ 924(c)(3)(B) is materially indistinguishable.” Id. As such, Mr. Durazo asserted he “is innocent of the § 925(c) [sic] offense, and his conviction is void.” Id. “Pursuant to Standing Order 16-002, Mr. Durazo ask[ed] the court to stay [his § 2255] motion until such time as he submits a supplemental brief in support of [the] motion.” Id. at 3. The case was stayed to allow time for further guidance from appellate courts concerning how Johnson would be applied to other statutes and situations. See Standing Order 16-002, at 1–2. Thereafter, the United States Supreme Court ruled that § 18 U.S.C. § 924(c)(3)(B) also is unconstitutionally vague. See United States v. Davis, 139 S. Ct. 2319, 2336 (2019). Mr. Durazo filed an amended § 2255 petition on the ground that his conviction could not stand in light of

Davis. Amended Mot. to Vacate, at 2 (ECF No. 3). He nevertheless asked that the stay be continued until the Tenth Circuit resolved related issues in United States v. Toki, 17-4153. Id. at 3. Mr. Durazo renewed his request on December 8, 2020 due to ongoing issues in the Toki case. Notice, at 1 (ECF No. 4). The government opposed a continued stay. Opp’n to Notice, at 1 (ECF No. 5). Subsequently, the Supreme Court granted certiorari, vacated the Tenth Circuit’s Toki ruling, 822 F. App’x 848 (10th Cir. 2020), and remanded the case “for further consideration in light of Borden v. United States, 593 U.S. ----, 141 S. Ct. 1817, 210 L. Ed. 2d 63 (2021).”1 Maumau v. United States, 142 S. Ct. 57 (2021). Upon remand, the Tenth Circuit ordered that the

924(c) convictions “based on predicate [Violent Crimes in Aid of Racketeering] offenses” be

1 The Supreme Court held in Borden that “[o]ffenses with a mens rea of recklessness do not qualify as violent felonies under [the Armed Career Criminal Act].” Borden, 141 S. Ct. at 1834. vacated. United States v. Toki, Case No. 17-4153, 2022 WL 274411, at *3 (10th Cir. Jan. 31, 2022). Significantly, however, the Tenth Circuit left the Hobbs Act convictions undisturbed. Id. (noting petitioners did “not argue that Borden undermined the validity of . . . § 924(c) convictions predicated on Hobbs Act robbery”). Based on caselaw development over the last seven years since Johnson, the court concludes a stay in this case is no longer warranted. Accordingly, the court ORDERS that the stay is lifted in this case. II. ORDER TO SHOW CAUSE Section 924(c) has two clauses: the elements or force clause, § 924(c)(3)(A), and the residual clause, § 924(c)(3)(B). Prior to Davis, the Tenth Circuit had already ruled that the residual

clause was unconstitutional. See United States v. Salas, 889 F.3d 681, 686 (10th Cir. 2018). The fact that § 924(c)(3)(B) is unconstitutional, however, does not address the matter before this court. Mr. Durazo pled guilty to a Hobbs Act robbery and that he did “knowingly use, carry and brandish a firearm” in furtherance of that crime. Statement in Advance, at 1 (ECF No. 71 in Case No. 2:08-cr-514). In United States v. Melgar-Cabrera, the Tenth Circuit ruled that a Hobbs Act robbery “categorically constitute[s] a crime of violence under what is sometimes called the statute’s elements or force clause, § 924(c)(3)(A).” 892 F.3d 1053, 1060–66 (10th Cir. 2018). Later that same year, the Tenth Circuit reaffirmed the holding in Melgar-Cabrera that a Hobbs Act robbery is a crime of violence. United States v. Jefferson, 911 F.3d 1290, 1296–99 (10th Cir.

2018). The same holding also may be found in United States v. Dubarry, 741 F. App’x 568, 570 (10th Cir. 2018) (denying Certificate of Appealability because a “Hobbs Act robbery is categorically a crime of violence under the elements clause of § 924(c)(3)(A) because that clause requires the use of violent force”); United States v. Rojas, 748 F. App’x 777, 779 (10th Cir. 2018) (applying Melgar-Cabrera and Dubarry and concluding “that Hobbs Act robbery is categorically a crime of violence under § 924(c)(3)(A)”); and United States v. Myers, 786 F. App’x 161, 162 (10th Cir. 2019) (rejecting that Davis constituted an “intervening Supreme Court authority” that required reevaluation of Me/gar-Cabrera, but stating even if reconsideration were required, the Court “would reach the same conclusion: Hobbs Act robbery is a crime of violence under the elements clause of § 924(c))”). Moreover, the most recent Tenth Circuit decision in Toki leaves Melgar-Cabrera undisturbed even in light of Davis and Borden. See Toki, 2022 WL 274411, at *3. Because the weight of this authority shows that Hobbs Act robbery constitutes a crime of violence under § 924(c), pursuant to 28 U.S.C. § 2255(b), the court orders Mr. Durazo to show cause why this case should not be dismissed on the ground that Mr. Durazo “‘is entitled to no relief.” Mr. Durazo shall respond to this Order to Show Cause on or before March 4, 2022. SO ORDERED this 9th day of February, 2022. BY THE COURT:

Clark Waddoupss—s—<—s United States District Judge