Mendez v. United States

• Court: District Court, S.D. California
• Decided: September 23, 2019
• Docket: 3:16-cv-01491
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, Case Nos.: 09CR0710-JLS 16CV1491-JLS 12 Plaintiff,

13 v. ORDER GRANTING DEFENDANT'S MOTION TO VACATE, SET ASIDE, 14 MAURICIO MENDEZ (1), OR CORRECT SENTENCE UNDER 15 Defendant. 28 USC § 2255 16 17 18 Presently before the Court is Defendant Mauricio Mendez’s Motion to Vacate, Set 19 Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 526). The Government has 20 filed a response and opposition to Defendant’s motion and Defendant has filed a reply, 21 supplemental briefing, and a supplemental notice. Having considered these submissions, 22 the applicable legal authority, and the record in this case, the Court will grant 23 Defendant’s motion. 24 BACKGROUND 25 On September 10, 2010, Defendant pled guilty, pursuant to a plea agreement, to 26 two counts of a superseding information. Count 1 of the superseding information 27 charged a conspiracy to conduct enterprise affairs through a pattern of racketeering 28 1 activity in violation of 18 U.S.C. § 1962(d); Count 2 charged Defendant with brandishing 2 a firearm during and in relation to a drug trafficking crime and a crime of violence in 3 violation of 18 U.S.C. § 924(c)(1)(A)(ii). (ECF No. 288.) 4 The plea agreement set forth the elements of the Count 1 offense, the RICO 5 conspiracy, as: 6 1. The defendant was employed by or associated with an enterprise, that is, a group of individuals associated in fact, as defined by 18 U.S.C. § 7 1961(4); 8 2. The enterprise engaged in or its activities in some way affected 9 interstate commerce between one state and another state, or between a 10 state of the United States and a foreign country; [and]

11 3. The defendant knowingly agreed with at least one other person to 12 conduct or participate in the conduct of the enterprise’s affairs through a pattern of racketeering activity, as that term is defined in Title 18, 13 United States Code, Sections 1961(1) and (5). That is, the defendant 14 agreed to participate in the enterprise with the knowledge and intent that a least one member of the RICO conspiracy (which could be the 15 defendant himself) would commit at least two racketeering acts 16 described above in Section I of this agreement.

17 Plea Agreement, ECF No. 292 at 3. 18 The elements of Count 2, set forth under the heading “Use of Firearm During and 19 in Relation to a Crime of Violence,” were: “1) the defendant committed a crime of 20 violence or a drug trafficking crime; and 2) the defendant knowingly brandished a 21 firearm during and in relation to one of those crimes.” Id. Regarding the factual basis for 22 the Count 2 offense, the Plea Agreement set forth the following: 23 Among the acts that defendant committed as evidence of the conspiracy…, 24 were:

25 a. On August 30, 2008, in San Diego, Mendez, along with other co- 26 conspirators, went to a residence in Coronado to collect a drug debt. The conspirators, including Mendez, entered the home and unlawfully 27 restrained the occupants. Mendez brandished a firearm to prevent the 28 1 occupants from fleeing. Mendez threatened the occupants of the home with injury or death if they did not pay $54,000. Mendez 2 searched the house for valuables while others guarded the occupants 3 downstairs. Mendez and his co-conspirators, through intimidation and threats of violence, prevented the occupants from fleeing or contacting 4 law enforcement. Eventually, Mendez and his co-conspirators left the 5 residence. When they left, they unlawfully took (1) two Dodge trucks, (2) a Land Rover, (3) a Mercedes Benz, (4) approximately 6 $2,000 in cash, (5) two laptop computers, (6) several Movado watches 7 and (7) miscellaneous jewelry. All of these items were taken without permission by force or threats or force. 8

9 b. Mendez forced an individual to leave the residence. 10 c. Mendez knowingly brandished a firearm during the commission of the above-described offense. 11

12 Id., at 5-6. 13 Defendant was sentenced on December 3, 2010 to a total of 318 months’ 14 imprisonment. This Court found a total offense level of 41 and that Defendant was a 15 career offender,1 resulting in a criminal history category of VI, for a guideline sentencing 16 range of 360 months to life. (Transcript of Sentencing Hearing, ECF No. 514 at 11-12.) 17 Because the Count 1 offense carried a statutory maximum term of 20 years, Defendant 18 was sentenced to 240 months’ custody with credit for six months served in state custody, 19 resulting in a sentence of 234 months’ custody on Count 1. Id. at 12-13. Defendant was 20 sentenced to the mandatory consecutive sentence of 84 months’ imprisonment for Count 21 2, resulting in the total sentence of 318 months’ imprisonment. Id. 22 23

24 25 1 Defendant challenges his designation as a career offender on the grounds that neither the RICO conspiracy nor his prior convictions for California residential burglary, California robbery, and 26 California battery by a prisoner are crimes of violence after Johnson v. United States, 135 S.Ct. 2551 27 (2015). However, even without the career offender designation, Defendant’s guideline range would have exceeded the 240-month statutory maximum, thus this determination is without material 28 consequence and will not be addressed. 1 Defendant’s plea agreement contained a waiver of appeal and collateral attack. 2 (Plea Agreement, ECF No. 292 at 11.) Defendant did not file an appeal, but, on June 15, 3 2016, filed the instant motion under Section 2255. In its response to Defendant’s motion, 4 the Government sought a stay while the Ninth Circuit considered the issue of whether 5 Johnson v. United States, 135 S.Ct. 2551 (2015) invalidates the residual clause in Section 6 924(c)(3)(B). Although the Court did not formally grant the stay, it did defer ruling on 7 Defendant’s motion for clarification of the issue. On June 24, 2019, the Supreme Court 8 issued its decision in United States v. Davis, 139 S.Ct. 2319 (2019) holding that that the 9 residual clause in Section 924(c)(3)(B) is void for vagueness. 10 11 ANALYSIS 12 In Johnson v. United States, supra, the Supreme Court struck down the residual 13 clause of the Armed Career Criminal Act (AACCA@) as unconstitutionally vague. Under 14 the ACCA, a sentencing judge is required to impose a mandatory 15-year minimum 15 sentence for a conviction under 18 U.S.C. § 922(g), when the defendant has three or more 16 prior convictions for a Aserious drug offense@ or a Aviolent felony.@ AViolent felony@ is 17 defined as a felony that: 18 (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or 19

20 (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of 21 physical injury to another. 22 23 18 U.S.C. § 924(e)(2)(B) (emphasis added). 24 The second clause of Subsection (ii), italicized above, is what has come to be 25 known as the residual clause. This clause was struck down in Johnson, but the 26 force/elements clause, subsection (i) above, and the enumerated-offenses clause, the first 27 clause of subsection (ii) above, were untouched. In Welch v. United States, 136 S.Ct. 28 1 1257, 1268 (2016), the Supreme Court held that Johnson announced a substantive rule 2 that applies retroactively on collateral review. 3 In Sessions v. Dimaya, 138 S.Ct. 1204 (2018), the Supreme Court struck down the 4 residual clause of 18 U.S.C. § 162 as unconstitutionally vague. The Dimaya Court noted 5 that § 16’s residual clause suffered from the same two features that rendered the residual 6 clause at issue in Johnson unconstitutionally vague: “an ordinary-case requirement and 7 an ill-defined risk threshold [that] necessarily “devolv[ed] into guesswork and intuition,” 8 invited arbitrary enforcement, and failed to provide fair notice.” 138 S.Ct. at 1223, 9 quoting Johnson, 135 S.Ct. at 2559. 10 In United States v. Davis, 139 S.Ct. 2319 (2019), the Supreme Court considered 11 the residual clause of the “crime of violence” definition in 18 U.S.C. § 924(c)(3)(B). 12 Under § 924(c)(3), a crime of violence is “an offense that is a felony” and: 13 (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or 14

15 (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 16 committing the offense. 17 18 The Davis court noted that Johnson and Dimaya “teach that the imposition of 19 criminal punishment can’t be made to depend on a judge’s estimation of the degree of 20 risk posed by a crime’s imagined “ordinary case.”” 139 S.Ct. at 2326. The Court 21 rejected the Government’s suggestion that this problem could be alleviated by adopting a 22 case specific interpretation of § 924(c)(3)(B) which would require courts to analyze the 23 defendant’s actual conduct in the predicate offense, holding that the statutory text, 24

25 2 Section 16 defines the term “crime of violence” as: “(a) an offense that has as an element the use, 26 attempted use, or threatened use of physical force against the person or property of another, or 27 (b) any other offense that is a felony and 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.” 28 1 history, and relationship with other criminal statutes command the categorical approach. 2 Ultimately the Davis court determined that the residual clause of § 924(c)(3) suffered the 3 same defects as those at issue in Johnson and Dimaya and thus is unconstitutionally 4 vague. 5 Defendant contends that, particularly in light of Davis, his conviction and sentence 6 for § 924(c), Count 2 of the superseding information, must be vacated. The Government 7 responds3 that: 1) Defendant waived his right to collaterally attack his sentence; 2) 8 Defendant procedurally defaulted his challenge to § 924(c)(3)(B); 3) Defendant has not 9 carried his burden of proving he was convicted under the residual clause in § 10 924(c)(3)(B); and 4) Johnson does not invalidate § 924(c)(3)’s residual clause.4 11 Although it is true that Defendant waived his right to collaterally attack his 12 conviction in his plea agreement and failed to file a direct appeal, the Court rejects the 13 notion that Defendant can fairly be deemed to have waived or procedurally defaulted his 14 claim herein. A plea agreement waiver will not apply if a defendant’s sentence is 15 “illegal,” which includes a sentence that “violates the Constitution.” United States v. 16 Torres, 828 F.3d 1113, 1125 (9th Cir. 2016), quoting United States v. Bibler, 495 F.3d 17 621, 624 (9th Cir. 2007). If Defendant was sentenced under the residual clause of § 18 924(c)(3), his sentence would be illegal pursuant to Davis and his plea agreement waiver 19 of collateral attack would be inoperative. 20 Similarly, procedural default may be excused in cases where a defendant can 21 demonstrate both cause to excuse the default and actual prejudice. United States v. 22 23 3 The Court refers to the United States’ response and opposition to Defendant’s § 2255 motion (ECF 24 No. 549); the Government has not submitted any supplemental briefing specifically addressing Davis, nor has the Court requested further briefing due to the length of time Defendant’s motion has already 25 been pending. 4 The Government also suggested that this Court should stay this case pending the Ninth Circuit Court 26 of Appeals’ decision in United States v. Begay and other cases. On August 19, 2019, the Ninth Circuit 27 rendered its decision in Begay, holding that second-degree murder does not constitute a crime of violence under the remaining definition of “crime of violence,” the elements clause of § 924(c)(3)(A). 28 United States v. Begay, __ F.3d. __, 2019 WL 3884261 (9th Cir. Aug. 19, 2019). 1 Johnson, 988 F.2d 941, 945 (9th Cir. 1993). Cause may be demonstrated when a claim is 2 “so novel that its legal basis is not reasonably available to counsel.” Reed v. Ross, 468 3 U.S. 1, 16 (1984). The Supreme Court has recognized three situations in which such a 4 claim may arise: 1) where a Supreme Court decision explicitly overrules Supreme Court 5 precedent; 2) where a Supreme Court decision “overturn[s] a longstanding and 6 widespread practice to which this Court has not spoken, but which a near-unanimous 7 body of lower court authority has expressly approved”; and 3) where a Supreme Court 8 decision disapproves of a practice the Court arguably sanctioned in prior cases. Reed, 9 468 U.S. at 17, quoting United States v. Johnson, 457 U.S. 537, 551 (1982). When a case 10 falling into the first two categories is given retroactive application, “there will almost 11 certainly have been no reasonable basis upon which an attorney previously could have 12 urged a state court to adopt the position that [the Supreme Court] ultimately has 13 adopted.” Id. 14 Here, Defendant satisfies the first and second Reed categories. Johnson overruled 15 two prior rulings rejecting challenges to the ACCA’s residual clause: Skyes v. United 16 States, 564 U.S. 1 (2011) and James v. United States, 550 U.S. 192 (2007). Johnson, 135 17 S.Ct. at 2563. The Tenth Circuit has found cause excusing procedural default in a post- 18 Johnson § 2255 challenge to the ACCA’s residual clause, noting that, “it is fair to say 19 that no one—the government, the judge, or the [defendant] could reasonably have 20 anticipated Johnson.” United States v. Snyder, 871 F.3d 1122, 1127 (10th Cir. 2017), 21 quoting United States v. Redrick, 841 F.3d 478, 480 (D.C.Cir. 2016). Thus, Davis, which 22 was extension of Johnson, also could not have been foreseen at the time of Defendant 23 was sentenced in 2010. As Defendant points out, at that time the Ninth Circuit had 24 consistently upheld the practice of imposing punishment under § 924(c)’s residual clause. 25 See e.g., United States v. Springfield, 829 F.2d 860, 863 (9th Cir. 1987) (finding that 26 involuntary manslaughter carried a “substantial risk” of force justifying § 924(c) 27 conviction); United States v. Mendez, 992 F.2d 1488, 1491 (9th Cir. 1993) (finding that 28 1 conspiracy to interfere with interstate commerce by robbery by its nature involves a 2 substantial risk of force within the meaning of § 924(c)(3)(B)). Accordingly, the Court 3 finds that Defendant has established cause for his failure to file a direct appeal. 4 Defendant has also established actual prejudice because a decision in his favor on the 5 merits would render illegal Defendant’s sentence on Count 2. 6 As to the Government’s third argument, the Court is persuaded that Defendant has 7 met his burden of establishing that he may have been convicted under the residual clause 8 of 924(c)(3). The Government contends that Defendant must establish that he was in fact 9 sentenced under the residual clause to merit relief and notes that the Court “never uttered 10 the phrase “substantial risk” during the sentencing hearing, nor relied on § 924(c)(3)(B) 11 to sentence Mendez, at all.” (Gov’t Resp., ECF No. 549 at 9.) However, the record also 12 contains no reference to the elements clause of 924(c)(3) and is silent as to the particular 13 definition this Court applied in its determination that the sentence was warranted. 14 The Ninth Circuit has determined that when it is unclear from the record whether 15 the sentencing court relied on the residual clause, but it may have, the defendant’s § 2255 16 claim “relies on” the constitutional rule announced in Johnson. United States v. Geozos, 17 870 F.3d 890, 896 (9th Cir. 2017), overruled on other grounds by Stokeling v. United 18 States, 139 S.Ct. 544 (2019). Thus, because the record is not clear which clause this 19 Court relied upon in its determination that the predicate offense for Defendant’s § 924(c) 20 conviction constituted a violent felony, the Court finds that Defendant’s claim “relies on” 21 the rule announced in Johnson. Furthermore, because the predicate offense, conspiracy 22 to conduct enterprise affairs through a pattern of racketeering activity in violation of 18 23 U.S.C. § 1962(d), does not contain as an element the use, attempted use, or threatened 24 use of physical force against the person property of another, Defendant’s sentence 25 necessarily relied upon the residual clause. 26 The Government suggests that the residual clause of the “crime of violence” 27 definition is not implicated in this case because Defendant was charged with and 28 1 admitted that the § 924(c) conviction occurred during and in relation to both a drug 2 trafficking crime and a crime of violence. However, the conduct admitted by Defendant 3 as a basis for the Count 2 § 924(c) conviction centered upon an incident on August 30, 4 2008, where Defendant and other co-conspirators went to a residence in Coronado to 5 collect a drug debt. (Plea Agreement, ECF No. 292 at 5-6.) Defendant admitted 6 unlawfully entering the residence and brandishing a firearm to prevent the occupants 7 from fleeing. He admitted threatening and restraining the occupants, taking property 8 without permission by force or threats of force, and forcing an individual to leave the 9 residence. Id. Thus, while the offense may have been charged as brandishing a firearm 10 during both a drug trafficking offense and a crime of violence, the only conduct admitted 11 by Defendant related to crimes of violence. Indeed, the plea agreement headings for the 12 Count 2 offense describe it as “Count 2—Brandishing a Firearm During and In Relation 13 to a Crime of Violence.” (Id. at 3, 7.) Thus, the Court finds no support for the 14 Government’s suggestion that Defendant’s conviction for Count 2 rested upon a drug 15 trafficking offense. 16 Finally, the Government contends that Johnson does not invalidate 924(c)(3)(B)’s 17 residual clause, a position we now know fails in light of Davis. Although Davis has not 18 yet been made retroactive to cases on collateral review, the Court finds that Davis, like 19 Johnson before it, announces a new rule not dictated by existing precedent. See United 20 States v. Hammoud, 931 F.3d 1032 (11th Cir. 2019) (holding that Davis announced a new 21 substantive rule and that Supreme Court’s holdings in multiple cases necessarily dictate 22 retroactive application of the new rule for purposes of second or successive petitions 23 under § 2255(h)(2).).5 24

25 5 Technically, Defendant’s § 2255 motion, filed within one year of Johnson, was premature. See 26 United States v. Blackstone, 903 F.3d 1020, 1028 (9th Cir. 2018) (recognizing that Johnson’s application 27 to the residual clause of § 924(c) had not been addressed by the Supreme Court, thus Johnson did not announce a new rule that is applicable to § 924(c)’s residual clause). However, since Davis now settles 28 the issue, the Government initially requested to stay Defendant’s motion until resolution of United 1 Thus, turning to the merits of Defendant’s claim, the Court must analyze whether 2 Defendant’s conviction can be sustained under the elements clause of § 924(c)(3)(A). 3 That is, the Court must determine whether the offense is a felony that “has as an element 4 the use, attempted use, or threatened use of physical force against the person or property 5 of another.” Summarized, the elements of the predicate offense, the RICO conspiracy, 6 were set forth in the plea agreement as: 1) the defendant was employed by or associated 7 with an enterprise…as defined by 18 U.S.C. § 1961(4); 2) the enterprise engaged in or in 8 some way affected interstate commerce; and 3) the defendant knowingly agreed with at 9 least one other person to conduct or participate in the conduct of the enterprise’s affairs 10 through a pattern of racketeering activity. (Plea Agreement, ECF No. 292 at 3.) None of 11 these elements require the use or threatened use of physical force against the person or 12 property of another and the Government makes no showing that they should be construed 13 as such. Although it is clear that Defendant’s conduct in this case did involve the use and 14 threatened use of physical force, Davis teaches that the Court may not analyze the actual 15 conduct of the predicate offense in determining whether the definition of “crime of 16 violence” has been met. Applying the categorical approach commanded by Davis, the 17 Court concludes that the predicate offense for Defendant’s § 924(c) conviction does not 18 qualify as a crime of violence under the elements clause of § 924(c)(3)(A). Accordingly, 19 the Court finds that Defendant is entitled to relief. 20 21 22 23 24 25 26 27 States v. Begay, supra n.4, and Defendant would be entitled to file a second or successive petition for the 28 reasons set forth in Hammond, the Court finds it appropriate to consider Defendant’s motion as filed. l CONCLUSION 2 For the foregoing reasons, Defendant’s Motion to Vacate, Set Aside, or Correct 3 Sentence under 28 U.S.C. § 2255 is GRANTED. The Court HEREBY VACATES 4 || Defendant’s sentence as to Count 2 of the superseding information. The sentence 5 ||imposed for Court 1 remains in effect as do all other terms and conditions previously 6 || imposed. 7 IT IS SO ORDERED. 8 Dated: September 23, 2019 . tt f te 9 on. Janis L. Sammartino 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ll □□□□□□□□□□□□