Olivera v. United States

Opinion

1 2 3 7 UNITED STATES OF AMERICA, 8 Case No. 5:1 1-cr-00355-EJD-22 Plaintiff, 9 ORDER GRANTING DEFENDANT’S v. AMENDED 28 U.S.C. § 2255 MOTION 10 TO VACATE AND CORRECT JORGE LUIS OLIVERA, CONVICTION AND SENTENCE Defendant. Re: Dkt. No. 978 g

13 Before the Court is Defendant Jorge Luis Olivera’s Amended 28 U.S.C.§ 2255 motion to

14 vacate and correct his conviction and sentence. 28 U.S.C.§ 2255 Motion to Vacate (“Mot.”), Dkt. © 3 15 978. On July 15, 2020, the Government filed its response to Defendant’s motion and requested QO 16 || that the Court resentence Defendant. Government’s Response to 2255 and Request for Plenary

17 Re-Sentencing (“Response”), Dkt. 997. Thereafter, on July 30, 2020, Defendant filed his reply.

18 Defendant’s Reply to Government’s Response to 28 U.S.C. § 2255 Motion to Vacate (“Reply”), 19 Dkt. 1008. For the foregoing reasons, Defendant’s motion is GRANTED. 21 On March 10, 2017, Defendant entered into a plea agreement and pled guilty to two 22 charges: racketeering conspiracy, in violation of 18 U.S.C.§ 1962(d) (Count 1) and use of a 23 firearm in relation to a crime of violence, in violation of 18 U.S.C.§ 924(c) (Count 4). See Mot. 24 On June 26, 2017, the Court sentenced Defendant to 130 months in custody. /d. Pursuant to the 25 sentencing order, Defendant received 70 months for Count 1 and a 60-month mandatory 26 consecutive sentence for Count 4. Dkt. 766. Defendant is currently incarcerated at USP Terre 27 Case No.: □□□ 1-cr-00355-EJD-22 28 ORDER GRANTING DEFENDANT’S AMENDED 28 U.S.C. § 2255 MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE

1 Haute. 2 In June 2019, the United States Supreme Court held that 18 U.S.C. § 924(c)’s residual 3 clause (which Defendant was charged and sentenced under) is unconstitutionally vague. United 4 States v. Davis, 139 S. Ct. 2319, 2323-24 (2019). In light of Davis, Defendant moves under 28 5 U.S.C. § 2255 for his conviction and sentence to be vacated, set aside, and corrected. 6 Il. LEGAL STANDARD 7 A federal sentencing court is authorized to grant relief if it concludes that “the sentence 8 was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a). 9 Ifthe court finds that relief is warranted, it must vacate and set aside the judgment and then 10 discharge the prisoner, resentence him, grant a new trial, or correct the sentence as may appear 11 appropriate. /d. § 2255(b). A court may retroactively apply a constitutional rule of criminal 12 procedure to a prisoner’s conviction and sentence if: (1) it places a class of conduct beyond the 13 authority of the criminal law to proscribe or (2) it announces a watershed rule of criminal 14 procedure. See United States v. Brown, 415 F. Supp. 3d 901, 904 (N.D. Cal. 2019). 3 15 I. DISCUSSION a 16 On June 24, 2019, the United States Supreme Court held that the residual clause—the very 3 17 || statute Defendant was convicted under for Count Four—is unconstitutionally vague. Davis, 139 18 S. Ct. at 2323-24. The Government does not dispute that Davis applies retroactively or that it 19 requires the Court to vacate Defendant’s § 924(c) conviction, i.e., Count Four. See Response at 5. 20 Accordingly, the Court GRANTS Defendant’s § 2255 motion and vacates Defendant’s § 924(c) 21 conviction and sentence. 22 The Government instead argues that this Court should resentence Defendant on the 23 remaining count of conviction, i.e. Count One. See id. But, “the usual remedy is to set aside the 24 counts on which illegal convictions were obtained and to leave untouched the valid convictions.” 25 United States v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999). The court has “wide discretion” to 26 issue whatever remedy it deems “appropriate.” Troiano v. United States, 918 F.3d 1082, 1086 a Case No.: □□□ 1-cr-00355-EJD-22 28 ORDER GRANTING DEFENDANT’S AMENDED 28 U.S.C. § 2255 MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE

1 (9th Cir. 2019) (holding that the standard of review for a district court’s determination of the 2 appropriate remedy in a § 2255 is abuse of discretion); United States v. Handa, 122 F.3d 690, 691 3 (9th Cir. 1997) (Section 2255 confers on district courts “broad and flexible power” to craft an 4 appropriate remedy). Indeed, just recently, this Court declined to hold a resentencing hearing in 5 two comparable cases. See United States v. Cardenas, 2019 WL 7020193 (N.D. Cal. Dec. 20, 6 2019); see also United States v. Cisneros, 2020 WL 4349825 (N.D. Cal. July 29, 2020). As in 7 Cardenas and Cisneros, there is no need to hold a resentencing hearing because the Court can 8 easily excise the 18 U.S.C. § 924(c) conviction and sentence, while leaving the 18 U.S.C. 9 § 1962(d) count intact. See id. at *2; see also Brown, 415 F. Supp. 3d at 907 (declining to hold a 10 resentencing hearing due to the “straightforward nature of correcting [the defendant’s] conviction 11 and sentence”). 12 The Government uses Troiano to argue that when a count is vacated such that it impacts 13 the relevant Guideline range, the district court must engage in resentencing. Response at 5—7. In 14 fact, in Troiano, the Ninth Circuit specifically noted that “the decision to unbundle a sentencing 3 15 || package—that is, to conduct a full resentencing on all remaining counts of conviction when one or a 16 || more counts of a multi-count conviction are undone—rests within the sound discretion of the 3 17 || district court.” 918 F.3d at 1087 (emphasis added); see also id. at 1086-87 (“[T]he decision to 18 restructure a defendant’s entire sentence when only one of the counts of conviction is found to be 19 invalid is discretionary and not ...mandatory.”). Indeed, in Troiano, “it [was] evident from the 20 record... that Troiano’s counts of conviction were not actually grouped for sentencing in any 21 material way that might have led the district court, in its discretion, to unbundle them for 22 resentencing.” /d. at 1087. Hence, nothing in Troiano forbids a court (in its discretion) to decline 23 to resentence, so long as the counts of conviction are grouped in such a way that they can be 24 unbundled. /d.; see also id. at 1088 (noting that removing the sentencing enhancement for the 25 vacated count would not have “any impact on the sentences for the unaffected counts”). 26 a Case No.: □□□ 1-cr-00355-EJD-22 28 ORDER GRANTING DEFENDANT’S AMENDED 28 U.S.C. § 2255 MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE

1 Here, it is simple to excise the sentence for Count 4. Defendant received 70 months for 2 Count 1 and a 60-month mandatory consecutive sentence for Count 4. Hence, the Court can 3 simply excise the 60-month mandatory sentence for Count 4 and correct Defendant’s conviction 4 and sentence without having a resentencing hearing. See Brown, 415 F Supp. 3d at 907. 5 Moreover, there are good reasons not to resentence Defendant. USP Terre Haute, where 6 Defendant is incarcerated, has reported COVID-19 cases. Additional time could subject 7 Defendant to the unnecessary risk of acquiring COVID-19. Moreover, Defendant has engaged in 8 post-sentence rehabilitation and has disavowed gang membership and thus cannot associate with 9 gang members. For these reasons, the Court declines to have a resentencing hearing. As 10 Defendant has already served the 70-month custodial sentence on Count 1, see Dkt. 737 (in 11 custody since January 30, 2014), he must be released forthwith from the custody of the Bureau of 12 Prisons. 14 For the foregoing reasons, Defendant’s 18 U.S.C. § 924(c) conviction and sentence are 3 15 || vacated. As he has already completed his sentence for Count One, he must be released forthwith a 16 || from the custody of the Bureau of Prisons. Nothing in this Order shall affect the five-year 3 17 || supervised release ordered for Count One. See Judgment, Dkt. 766. Finally, in light of the 18 ongoing COVID-19 pandemic, Defendant must quarantine himself for 14-days upon release. 20 Dated: August 3, 2020 21 EDWARD J. DAVILA 22 United States District Judge 23 24 25 26 a Case No.: □□□ 1-cr-00355-EJD-22 28 ORDER GRANTING DEFENDANT’S AMENDED 28 U.S.C. § 2255 MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE