Zepeda v. United States

• Court: District Court, D. Arizona
• Decided: January 11, 2022
• Docket: 2:17-cv-01229
• Status: Unknown

Opinion

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Damien Miguel Zepeda, No. CV-17-01229-PHX-ROS No. CR-08-01329-PHX-ROS-1 10 Petitioner, ORDER 11 v. 12 United States of America, 13 Respondent. 14 15 Pending before the Court are two motions filed by Petitioner Damien Miguel 16 Zepeda seeking to vacate his convictions in the criminal matter, CR-08-01329-PHX- 17 ROS-1, under 28 U.S.C. § 22551 (Doc. 1; CR-08-01329-PHX-ROS-1 Doc. 236),2 or 18 reduce his sentence or compassionate release pursuant to 18 U.S.C. § 3582(c)(1)(A). 19 (CR-08-01329-PHX-ROS-1 Doc. 246). 20 On October 25, 2008, Zepeda and two of his younger brothers went to a residence 21 on the Ak-Chin Indian Reservation to confront Zepeda’s former girlfriend (hereinafter 22 referred to by her initials, “SA”). (Doc. 55 at 1-2; CR-08-01329-PHX-ROS-1 Doc. 269 23 at 2). During the confrontation, Zepeda hit SA in the head with a blunt object several 24 times and shot at two other persons present, one adult male (“DP”) and one minor female 25 (“C”). (Doc. 55 at 2; CR-08-01329-PHX-ROS-1 Doc. 269 at 2-3). DP suffered several 26 1 Zepeda’s motion to vacate pursuant to 28 U.S.C. § 2255 was filed in both the habeas 27 case, CV-17-01229-PHX-ROS (Doc. 1), and his criminal case, CR-08-01329-PHX-ROS- 1 (CR-08-01329-PHX-ROS-1 Doc. 236). This Order resolves both. 28 2 All docket citations in this Order are to docket in the civil matter, CV-17-01229-PHX- ROS, unless otherwise noted. Case 2:17-cv-01229-ROS Document 61 Filed 01/11/22 Page 2 of 32

1 gunshot wounds while shielding C with his body. (Doc. 55 at 2; CR-08-01329-PHX- 2 ROS-1 Doc. 269 at 2-3). 3 Magistrate Judge James F. Metcalf issued a Report and Recommendation 4 (“R&R”) recommending that Zepeda’s § 2255 motion be granted in part. (Doc. 55 at 38- 5 39). The R&R recommends vacatur of the conviction and sentence on Count 3 of the 6 indictment. (Doc. 55 at 39). The R&R also recommends that Zepeda’s sentence on 7 Counts 1, 2, 4, 5, 6, 7, 8, and 9 be vacated and that Zepeda should be resentenced on 8 those counts. (Doc. 55 at 39). With the exceptions noted below, the R&R will be 9 adopted. Zepeda’s Motion to Vacate, Set Aside, or Correct Sentence (Doc. 1; CR-08- 10 01329-PHX-ROS-1 Doc. 236) will therefore be granted in part. 11 Zepeda’s Amended Motion for Compassionate Release/ Sentence Reduction 12 Pursuant to 18 U.S.C. § 3582(c)(1)(A) (CR-08-01329-PHX-ROS-1 Doc. 246) contends 13 that Zepeda is eligible for compassionate release for several reasons. The primary basis 14 for relief is the disparity between Zepeda’s sentence and defendants sentenced under the 15 First Step Act, Pub. L. No. 115-391 (2018). The Court holds Zepeda is not entitled to 16 compassionate release. The Court will deny Zepeda’s motion for sentence reduction 17 without prejudice. He may refile the motion which will be fully briefed and resolved at 18 the resentencing. 19 BACKGROUND 20 I. Factual background 21 On October 25, 2008, Damien Miguel Zepeda (“Zepeda”) and his brother 22 Matthew were drinking beer at their mother’s house in Maricopa, Arizona. See United 23 States v. Zepeda, 792 F.3d 1103, 1107 (9th Cir. 2015) (en banc). Zepeda asked Matthew 24 and their brother, Jeremy, if they would like to go to a party. Id. Both brothers agreed. 25 Id. The Zepeda brothers then went to DP’s house, which was located on the Ak-Chin 26 Reservation. Id. Outside the house, the brothers drank beer and smoked marijuana. Id. 27 Eventually, Zepeda told Jeremy to “grab something from under the front seat.” Id. 28 Because Jeremy was not paying attention, Matthew reached under the seat and obtained

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1 a shotgun. Id. Zepeda told Matthew to fire the shotgun if he heard gunshots. Id. 2 Zepeda, wielding a pistol, went and knocked on the front door of the house. Id. 3 Zepeda asked to see his former girlfriend, SA. Id. DP had been giving SA a tattoo when 4 Zepeda arrived. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2). Zepeda asked SA to leave 5 with him. Zepeda, 792 F.3d at 1107. SA refused and an argument ensued between 6 Zepeda and SA. (CR-08-01329-PHX-ROS-1 Doc. 269 at 2). At one point during the 7 argument, Zepeda repeatedly hit SA on the head with a hard object. 3 Zepeda, 792 F.3d at 8 1107. SA fell to the ground and then ran toward DP’s residence. (CR-08-01329-PHX- 9 ROS-1 Doc. 269 at 2). 10 Alerted by the commotion, C went outside to check on SA. Zepeda, 792 F.3d at 11 1107. C told police she witnessed Zepeda hit SA with a gun. (CR-08-01329-PHX-ROS- 12 1 Doc. 269 at 2). C tried to run away but she tripped and fell. (CR-08-01329-PHX-ROS- 13 1 Doc. 269 at 2). When C looked up, Zepeda was shooting at her. (CR-08-01329-PHX- 14 ROS-1 Doc. 269 at 2). 15 DP, who was urinating off the porch at the time, heard the gunshots and walked to 16 the southeast corner of the house. Zepeda, 792 F.3d at 1107. He covered C with his 17 body to “shield her” from the gunshots. Id. DP was shot while holding C. Id. C 18 testified, “[t]he shooting kept going and going.” Id. She said, “I had blood all on my 19 back and I thought I got shot and [DP] said, ‘You’re okay. Just—I got shot. Just run. 20 Please just run.’” Id. at 1108. She was able to flee into the house. Id. DP told the 21 police that he remembered being shot by multiple people. (CR-08-01329-PHX-ROS-1 22 Doc. 269 at 2). Zepeda and his brothers fled after DP managed to disarm Zepeda. See 23 Zepeda, 792 F.3d at 1108. 24 DP suffered several gunshot wounds. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3). 25 He suffered a wound to the left groin, resulting in vascular injuries and injuries to his 26 3 The record is somewhat unclear whether this object was Zepeda’s pistol or different 27 hard object. Compare Zepeda, 792 F.3d at 1107 (“Zepeda hit her in the head multiple times with something hard.”) with CR-08-01329-PHX-ROS-1 Doc. 269 at 2 (“Zepeda hit 28 [SA] in the head with the butt of the gun several times.”). For present purposes it does not matter whether the object was a pistol or not.

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1 colon. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3). He suffered a through-and-through 2 gunshot wound to his right wrist, which caused nerve and vein damage. (CR-08-01329- 3 PHX-ROS-1 Doc. 269 at 3). And he suffered gunshot or shotgun pellet wounds to his 4 upper chest and shoulders. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3). DP was not 5 discharged from the hospital until January 9, 2009, more than two months after the 6 shooting. (CR-08-01329-PHX-ROS-1 Doc. 269 at 3). 7 II. Procedural background 8 A nine-count indictment, filed on November 12, 2008, charged Zepeda, Matthew, 9 and Jeremy with: one count of conspiracy to commit assault with a dangerous weapon 10 and to commit assault resulting in serious bodily injury, in violation of 18 U.S.C. §§ 11 1153, 371, and 2; one count of assault resulting in serious bodily injury, in violation of 18 12 U.S.C. §§ 1153, 113(a)(6), and 2; three counts of assault with a dangerous weapon, in 13 violation of 18 U.S.C. §§ 1153, 113(a)(6), and 2; and four counts of using a firearm 14 during a crime of violence, 18 U.S.C. §§ 924(c)(1)(A). (CR-08-01329-PHX-ROS-1 Doc. 15 269 at 3-4); Zepeda, 792 F.3d at 1108. The indictment was charged pursuant to the 16 Indian Major Crimes Act, 18 U.S.C. § 1153, which authorizes federal jurisdiction over 17 certain crimes committed by Indians on Indian reservations. Zepeda, 792 F.3d at 1106. 18 Matthew pled guilty to assault resulting in serious bodily injury and to use of a firearm 19 during a crime of violence. Id. at 1108. Matthew was released from prison on April 24, 20 2014. (CR-08-01329-PHX-ROS-1 Doc. 246 at 7). Jeremy pled guilty to misprision of a 21 felony. Zepeda, 792 F.3d at 1108. He was released on November 19, 2009. (CR-08- 22 01329-PHX-ROS-1 Doc. 246 at 7). Zepeda was convicted on all nine counts. Zepeda, 23 792 F.3d at 1108-09. 24 On March 22, 2010, the Court sentenced Zepeda to 1,083 months’ imprisonment. 25 (Doc. 55 at 3). Zepeda received: 60 months on Count 1 (conspiracy to commit assault 26 resulting in serious bodily injury); 63 months on Count 2 (assault resulting in serious 27 bodily injury); 63 months per count for Counts 4, 6, and, 8 (assault with a dangerous 28 weapon). (Doc. 55 at 3). These sentences run concurrently. (Doc. 55 at 3). Zepeda was

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1 further sentenced to 120 months on Count 3 (use of a firearm during a crime of violence), 2 and 300 months per count for Counts 5, 7, 9 (use of a firearm during a crime of violence). 3 (Doc. 55 at 3). The sentences on Counts 3, 5, 7, and 9 (“the § 924(c) convictions”) run 4 consecutive to one another and consecutive to the concurrent sentences imposed on 5 Counts 1, 2, 4, 6, and 8. (Doc. 55 at 3). 6 Zepeda appealed his conviction. See United States v. Zepeda, 738 F.3d 201 (9th 7 Cir. 2013). A divided panel of the Ninth Circuit affirmed Zepeda’s conviction for 8 conspiracy but reversed his convictions on the other eight counts on the ground that the 9 government introduced insufficient evidence to support the jury’s finding that Zepeda is 10 an Indian. Zepeda, 792 F.3d at 1109. The panel rejected all of Zepeda’s other arguments 11 challenging his convictions. Id. (citing Zepeda, 738 F.3d at 208; United States v. Zepeda, 12 506 F.App’x 536, 538-39 (9th Cir. 2013)). 13 The Ninth Circuit, sitting en banc, affirmed the district court judgment. Id. at 14 1116. The en banc court held that the government adequately demonstrated Zepeda is an 15 Indian within the meaning of the Indian Major Crimes Act, held his sentence was not 16 unreasonable, and adopted the panel’s reasons for rejecting all of Zepeda’s other 17 arguments. Id. at 1109 (citing Zepeda, 738 F.3d at 207-08; Zepeda, 506 F.App’x at 538- 18 39). 19 On April 25, 2017, Zepeda filed a motion to vacate, set aside, or correct his 20 sentence under 28 U.S.C. § 2255 asserting 11 grounds for relief. (Doc. 1). This Order 21 discussing Zepeda’s § 2255 motion will follow the organization of the R&R, which 22 separates Zepeda’s claims for relief as follows: 23 • Ground 1: Ineffective assistance of counsel regarding Zepeda’s voluntary 24 intoxication. 25 • Ground 2: Ineffective assistance of counsel related to the failure of Zepeda’s 26 counsel to object or seek curative instruction to a variety of alleged errors at 27 trial. 28 • Ground 3: An alleged violation of the Confrontation Clause of the Sixth

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1 Amendment. 2 • Ground 4: Erroneous voluntary intoxication instruction. 3 • Ground 5: Denial of the right to a fair trial. 4 • Ground 6: Misrepresentation of evidence by the prosecution. 5 • Ground 7: Insufficiency of evidence. 6 • Ground 8: Cumulative error, resulting in a denial of the right to a fair trial. 7 • Ground 9: Sentencing error based on the misapprehension of judicial discretion 8 by the trial court and new law under Dean v. United States, 137 S.Ct. 1170 9 (2017). 10 • Ground 10: Sentencing error under Johnson v. United States, 559 U.S. 133 11 (2010) and Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). 12 • Ground 11: Erroneous consecutive terms for the § 924(c) offenses. 13 (Doc. 55 at 5-6). The government responded on July 12, 2017, arguing that several of 14 these grounds should be rejected because they were resolved on direct appeal. (Doc. 13). 15 The government also contends Ground 10 is procedurally barred, and that several 16 grounds are without merit. (Doc. 55 at 6). 17 On June 10, 2021, the Supreme Court decided Borden v. United States, 141 S.Ct. 18 1817 (2012). The Court held that recklessness does not satisfy the mens rea requirement 19 for a “violent felony” under Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). 20 Id. at 1821-22. In other words, the Court held that conviction under § 924 requires proof 21 of either purpose or knowledge on the part of the defendant. Id. at 1822. The parties 22 agree that Zepeda’s conviction and sentence on Count 3 of the indictment must be 23 vacated pursuant to Borden because assault resulting in serious bodily injury—the 24 predicate offense to Count 3—can be committed with a mental state less than purpose or 25 knowledge.4 (CR-08-01329-PHX-ROS-1 Doc. 269 at 4). 26 On July 29, 2021, Zepeda filed an Amended Motion for Compassionate Release/ 27 4 Borden held offenses which can be committed with a mental state less than purpose or knowledge are not “violent felon[ies]” and therefore cannot serve as a predicate offense 28 under § 924(e). See Borden, 141 S.Ct. at 1834. The parties agree Borden is applicable to Zepeda’s convictions under § 924(c). (CR-08-01329-PHX-ROS-1 Doc. 269 at 4).

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1 Sentencing Reduction Pursuant to 18 U.S.C. § 3582(c)(1)(A). (CR-08-01329-ROS Doc. 2 246 at 1). Zepeda argues that sentence reduction or compassionate release are warranted 3 by some combination of: (1) the severity of his sentence relative to others who commit 4 similar crimes; (2) the enactment of the First Step Act of 2018, Pub. L. No. 115-391, 5 which decreased the mandatory minimum sentences for persons who commit crimes he 6 committed; (3) his youth at the time he committed the crimes for which he was 7 convicted; and (4) alleged risk factors that place him at greater risk of severe outcomes if 8 he is reinfected with COVID-19 or a variant thereof. (CR-08-01329-PHX-ROS-1 Doc. 9 246 at 20-35). The government argues that neither sentence reduction nor compassionate 10 release are warranted. (CR-08-01329-PHX-ROS-1 Doc. 269 at 20). 11 ANALYSIS 12 I. Zepeda’s § 2255 motion 13 A. Claims decided on direct appeal 14 The government argues that several of Zepeda’s claims should be dismissed as 15 resolved or waived on direct appeal. (Doc. 13 at 13-15). Specifically, the government 16 contends that the following claims should be resolved against Zepeda based on three 17 opinions issued by the Ninth Circuit on direct appeal: 18 • Zepeda’s claim that a Tribal Enrollment Certificate was improperly admitted 19 into evidence in violation of the Confrontation Clause; 20 • Zepeda’s claim that the lack of a voluntary intoxication instruction prevented a 21 proper finding of guilty by the jury; 22 • Zepeda’s claim that prosecutorial vouching and interference with a witness 23 deprived him of the right to a fair trial; 24 • Zepeda’s claim that the prosecutor misstated evidence during the closing 25 argument; 26 • Zepeda’s claim that there was insufficient evidence to support his convictions 27 due to the lack of a jury instruction regarding voluntary intoxication; 28 • Zepeda’s claim that there was insufficient evidence that he is an Indian.

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1 • Zepeda’s claim that there was cumulative error; and 2 • Zepeda’s claim that he should not have received consecutive § 924(c) 3 sentences because all the sentences were based on the same underlying 4 offence. 5 (Doc. 13 at 13-15). Zepeda’s reply to the government’s response does not address the 6 government’s argument that the claims listed above have been resolved or waived. (Doc. 7 53). 8 The Ninth Circuit has long held “that when a matter has been decided adversely on 9 appeal from a conviction, it cannot be litigated again on a [§ ]2255 motion.” Odom v. 10 United States, 455 F.2d 159, 160 (9th Cir. 1972). With the exception of the arguments 11 related to vouching and the sufficiency of evidence of mens rea, all of the above claims 12 had been resolved by the Ninth Circuit and therefore are not reviewable in this matter. 13 See Zepeda, 792 F.3d 1103 (9th Cir. 2015) (en banc); Zepeda, 742 F.3d 201 (9th Cir. 14 2013); Zepeda, 506 F.App’x 536 (9th Cir. 2013). 15 Zepeda argues his right under the Confrontation Clause of the Sixth Amendment 16 was violated by introduction of a Tribal Enrollment Certificate. (Doc. 1 at 9). Zepeda 17 did not object at trial to the Court’s admission of the Certificate. Zepeda, 738 F.3d at 18 207. Applying a plain error standard, the Ninth Circuit on direct appeal held the Court 19 “did not plainly err in admitting the Tribal Enrollment Certificate into evidence pursuant 20 to the parties’ stipulation.” Id. at 208. This claim is therefore unreviewable because it 21 was resolved by the appellate court on direct review. 22 Zepeda argues the Court erred by failing to give a voluntary intoxication 23 instruction despite evidence that Zepeda was voluntarily intoxicated at the time he 24 committed the crimes. (Doc. 1 at 10). The Ninth Circuit rejected this argument on direct 25 appeal in an unpublished memorandum disposition. See Zepeda, 506 F.App’x at 538 26 (“Zepeda argues the district court erred in failing to give a voluntary intoxication 27 instruction at trial. We disagree.”). 28 Zepeda argues his right to a fair trial was violated by (1) the prosecution vouching

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1 regarding plea agreements, (2) a statement by the prosecutor that Matthew committed 2 perjury while testifying in favor of Zepeda, (3) witness interference, (4) a sleeping juror, 3 and (5) collective error. (Doc. 15 at 1). The R&R suggests that each of these arguments 4 were rejected on direct review. (Doc. 55 at 9). Upon review of the Ninth Circuit’s 5 opinions on direct appeal, the Court finds the court of appeals clearly rejected four of 6 these arguments in the memorandum disposition. Zepeda, 506 F.App’x at 538-39 7 (rejecting Zepeda’s arguments regarding perjury allegations, witness interference, the 8 sleeping juror, and collective error). 9 However, the Court finds Zepeda’s vouching claim was not resolved on direct 10 appeal. “Vouching consists of placing the prestige of the government behind a witness 11 through personal assurances of the witness’s veracity, or suggesting that information not 12 presented to the jury supports the witness’s testimony.” United States v. Necoechea, 986 13 F.2d 1273, 1276 (9th Cir. 1993). Zepeda contends the government improperly vouched 14 in favor of Jeremy and Matthew based on their plea agreements. (Doc. 1 at 8, 15). The 15 Ninth Circuit did not explicitly address this particular vouching issue direct appeal. The 16 Ninth Circuit, however, did hold that no prejudicial plain error occurred when the 17 prosecutor misstated the evidence regarding what Zepeda told Jeremy before the crime 18 was committed. Zepeda, 506 F.App’x at 538. The Court does not find this holding 19 precludes consideration of Zepeda’s vouching argument because the Ninth Circuit did not 20 explicitly address it. The Court will therefore consider the merits of the vouching claim 21 below. See infra Part II.H. 22 Zepeda argues the prosecution misstated evidence when it improperly suggested 23 that Zepeda told others he was “going to do some dirt,” even though no such testimony 24 was admitted into evidence. (Doc. 1 at 16). The Ninth Circuit’s memorandum 25 disposition rejected this claim, finding “no prejudicial plain error resulted in light of the 26 ample additional evidence from which the jurors could have inferred a conspiratorial 27 agreement.” Zepeda, 506 F.App’x at 538. 28 Zepeda argues there was insufficient evidence to convict based on his mental state,

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1 his status as an Indian, and his assault charges. (Doc. 1 at 17-18). The R&R correctly 2 notes that, although the Ninth Circuit sitting en banc resolved Zepeda’s argument 3 regarding his Indian status, Zepeda, 792 F.3d at 1116, it did not adequately address 4 whether the jury had sufficient evidence of mental state to convict. (Doc. 55 at 9-10). 5 The memorandum disposition considered the Zepeda’s voluntary intoxication argument, 6 but only in the context of the determining that the Court did not plainly err by failing to 7 issue a voluntary intoxication instruction sua sponte. See Zepeda, 506 F.App’x at 538. 8 The Ninth Circuit did not consider the question whether there was sufficient evidence of 9 mental state notwithstanding the failure of the Court to instruct. In contrast to the R&R, 10 the Court finds that the Ninth Circuit did not resolve Zepeda’s argument with respect to 11 sufficiency of evidence on his assault charges because it only considered sufficiency of 12 that evidence in the context of conspiracy. Id. at 539. The Court will therefore consider 13 the merits of these claims below. See infra Parts II.D, II.E. 14 Zepeda argues cumulative trial errors violated his right to a fair trial. (Doc. 1 at 15 23). This argument was rejected by the Ninth Circuit in its memorandum disposition. 16 Zepeda, 506 F.App’x at 539. 17 Finally, Zepeda argues the Court erred in imposing consecutive prison terms on 18 the § 924(c) violations. (Doc. 1 at 25-27). However, the Ninth Circuit en banc court 19 rejected this claim, holding, “[u]nder 18 U.S.C. § 924(c), the district court was required 20 to impose consecutive mandatory minimum sentences on Zepeda’s convictions for use of 21 a firearm during a crime of violence.” Zepeda, 792 F.3d at 1116. 22 Excepting the claims previously resolved on appeal, the following claims remain: 23 • Ground 1: Ineffective assistance of counsel regarding Zepeda’s voluntary 24 intoxication. 25 • Ground 2: Ineffective assistance of counsel related to the failure of Zepeda’s 26 counsel to object or seek curative instruction to a variety of alleged errors at 27 trial. 28 • Ground 3: An alleged violation of the Confrontation Clause of the Sixth

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1 Amendment with respect to the ballistics report. 2 • Ground 5: Denial of the right to a fair trial resulting from prosecutorial 3 vouching. 4 • Ground 7: Insufficiency of evidence as to mental state and assault. 5 • Ground 9: Sentencing error based on the misapprehension of judicial discretion 6 by the trial court and new law under Dean v. United States, 137 S.Ct. 1170 7 (2017). 8 • Ground 10: Sentencing error under Johnson v. United States, 559 U.S. 133 9 (2010) and Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015). 10 Zepeda argues the government has waived the argument that any of the above 11 grounds were procedurally defaulted by failing to raise procedural default in its response. 12 (Doc. 53 at 20). “Ordinarily, the government’s failure to raise the petitioner’s procedural 13 default at the appropriate time waives the defense.” United States v. Barron, 172 F.3d 14 1153, 1156 (9th Cir. 1999). The R&R recommends that any procedural default defense is 15 waived because “here, Respondent has not just failed to raise a procedural default 16 defense, but has waived it by explicitly deleting it from its briefs.” (Doc. 55 at 13). The 17 Court agrees and will proceed to the merits. 18 B. Ineffective assistance of counsel claims 19 Zepeda asserts his trial counsel was ineffective in several respects. (Doc. 55 at 20 13). The Court agrees with the government that Zepeda’s counsel was not ineffective. 21 In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held a 22 “convicted defendant’s claim that counsel’s assistance was so defective as to require a 23 reversal of conviction . . . has two components.” Id. at 687. “First, the defendant must 24 show that counsel’s performance was deficient. This requires showing that counsel made 25 errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the 26 defendant by the Sixth Amendment.” Id. “Second, the defendant must show that the 27 deficient performance prejudiced the defense. This requires showing that counsel’s 28 errors were so serious as to deprive the defendant of a fair trial.” Id.

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1 Zepeda argues his trial counsel was ineffective in failing to raise the affirmative 2 defense of voluntary intoxication and seek a jury instruction despite evidence that Zepeda 3 and his co-defendants were intoxicated by alcohol and marijuana. (Doc. 55 at 13). 4 Zepeda concedes that he never discussed his level of intoxication with counsel. (Doc. 1 5 at 7). 6 Although the voluntary intoxication defense may have helped Zepeda, “[t]he law 7 does not require counsel to raise every available nonfrivolous defense.” Knowles v. 8 Mirzayance, 556 U.S. 111, 127 (2009) (citations omitted). The R&R recommends 9 finding that trial counsel was not constitutionally ineffective because “trial counsel made 10 a reasonable tactical choice to pursue the defense most in line with [Zepeda]’s version of 11 the facts, rather than a defense supported by evidence of [Zepeda]’s ingestion of some 12 indeterminate amount of alcohol and/or marijuana.” (Doc. 55 at 14). The Court agrees it 13 was not ineffective for Zepeda’s counsel to direct his focus away from voluntary 14 intoxication given the limited evidence supporting the defense. 15 Zepeda argues trial counsel was ineffective by failing to object or seek curative 16 instructions when the prosecution improperly vouched for co-defendants by informing 17 the jury they had pled guilty and were testifying to receive a reduced sentence. (Doc. 1 at 18 8). However, as explained below, see infra Part II.H, the Court finds Zepeda did not 19 have a valid claim on this ground at trial. See Baumann v. United States, 692 F.2d 565, 20 572 (9th Cir. 1982) (“The failure to raise a meritless legal argument does not constitute 21 ineffective assistance of counsel.”). The R&R correctly notes that Zepeda “points to 22 nothing to show” vouching occurred, or that reference to the plea agreements of his co- 23 defendants was improper. (Doc. 55 at 15) (quoting United States v. Halbert, 640 F.2d 24 1000, 1005 (9th Cir. 1981)). 25 Zepeda argues trial counsel was ineffective for failing to object or seek curative 26 instructions based on improper statements in the prosecution’s closing argument. (Doc. 1 27 at 8). Specifically, Zepeda argues his trial counsel should have objected to the 28 prosecution’s statement in the closing argument about a “conspiracy” to “ambush” the

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1 victims with a “dirty” “three-on-one” attack. (Doc. 1 at 8). The Court agrees with the 2 R&R that this statement was not improper. See United States v. Tucker, 641 F.3d 1110, 3 1120 (9th Cir. 2011) (“Prosecutors can argue reasonable inferences based on the record, 4 and have considerable leeway to strike ‘hard blows’ based on the evidence and all 5 reasonable inferences from the evidence.”). As the R&R suggests, “‘ambush’ and ‘dirty’ 6 were hard blows, [but] they were supported by the evidence, and were not a simple call to 7 passion or prejudice.” (Doc. 55 at 16). 8 Zepeda argues counsel was ineffective in failing to challenge the failure of the 9 forms of verdict to require a designation of degree of liability (i.e., conspirator, aiding 10 and abetting, or principal offender liability) on the conspiracy charges, which he contends 11 resulted in questions by the jury during deliberation. (Doc. 1 at 8). The R&R 12 recommends the Court find the forms were not erroneous and thus counsel was not 13 deficient in failing to challenge them. (Doc. 55 at 18). The government correctly notes 14 that it was not required to prove the role of each co-conspirator. United States v. 15 Vaandering, 50 F.3d 696, 702 (9th Cir. 1995). Moreover, the forms of verdict stated the 16 degree of liability in the alternative for each relevant charge: “the jury finds defendant 17 criminally responsible, either as a principal, aider and abettor or co-conspirator.” (CR- 18 08-01329-PHX-ROS-1 Doc. 113). The Court finds the form of verdict was non- 19 erroneous and, even if it was erroneous, the form was clear enough that counsel was not 20 ineffective by failing to object to the form. 21 Zepeda argues trial counsel was ineffective for failing to challenge a “blanket 22 verdict” that may have resulted in a conviction of Zepeda based on Matthew’s possession 23 of a shotgun, rather than just the handgun Zepeda had in his possession. (Doc. 55 at 18). 24 However, as the R&R notes, Zepeda’s “legal argument is valid, but his facts wrong.” 25 (Doc. 55 at 18). Zepeda’s multiple convictions under § 924(c)(1) were not based on the 26 number of weapons he had, but rather on the total number of predicate crimes of assault. 27 (Doc. 55 at 18). Zepeda would not have had more convictions if he had possessed the 28 shotgun, and therefore trial counsel’s failure to object to the vague statement by the

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1 prosecution did not affect Zepeda’s defense. 2 Zepeda argues trial counsel erred by failing to raise mutual defense with a co- 3 defendant. (Doc. 1 at 8). Trial counsel raised self-defense. (Doc. 1 at 8). Zepeda’s trial 4 counsel has since stated, “[a]fter reviewing the reports, conducting additional 5 investigation, and my numerous discussions with Mr. Zepeda, I determined that our best 6 strategy at trial was to discredit the government’s witnesses with the various 7 inconsistencies evident in their statements. This defense comported with Mr. Zepeda’s 8 version of the events of the evening.” (Doc. 13-1 at 1). As the R&R correctly noted, 9 Zepeda has been unable to identify any evidence, including his own testimony, which 10 would have supported a mutual defense argument. (Doc. 55 at 20-21). It was not 11 ineffective assistance for Zepeda’s trial counsel to raise only the affirmative defenses 12 which were reasonably supported by evidence and testimony. 13 Zepeda argues trial counsel acted ineffectively by stipulating to admission of the 14 Tribal Enrollment Certificate that was used to establish the essential jurisdictional 15 element of Indian status under the Indian Major Crimes Act. (Doc. 1 at 8, 13). Zepeda 16 objects that the Tribal Enrollment Certificate, which was issued on October 7, 2009 and 17 introduced into evidence on October 22, was “was facially insufficient to prove that 18 Damien [Zepeda] was a tribe member on the date of the offense which occurred more 19 than one year earlier.” (Doc. 1 at 8). The Ninth Circuit considered on direct appeal the 20 question whether admission of the Tribal Enrollment Certificate violated Zepeda’s rights 21 under the Confrontation Clause and held: 22 Zepeda argues that waiver of a fundamental constitutional right cannot ever constitute a sound trial strategy, particularly 23 where, as here, the Tribal Enrollment Certificate purported to establish an essential jurisdictional element. It appears from 24 the record, however, that Zepeda’s attorney strategically focused Zepeda’s defense on the implausibility of 25 government witnesses’ testimony, as compared to Zepeda’s markedly different version of the relevant events. He chose 26 not to direct the jury’s attention to Zepeda’s Indian status, and informed the jury during his opening statement: “I will 27 stipulate and concede things that ought to be conceded in terms of my client, Mr. Zepeda.” Although ultimately not a 28 winning strategy, it was clearly “deliberately made as a matter of trial tactics,” and did not involve a “basic trial

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1 right[]” . . . Nor, as we discuss at length below, was the Tribal Enrollment Certificate sufficient to carry the 2 government’s burden of proof of Zepeda’s Indian status. Thus, Zepeda’s attorney did not violate Zepeda’s 3 Confrontation Clause rights when he stipulated to admission of the Certificate. 4 Zepeda, 738 F3d at 207-08 (quoting United States v. Gamba, 541 F.3d 895, 901 (9th Cir. 5 2008)). The R&R recommends that, although this statement by the Ninth Circuit panel 6 did not decide the ineffectiveness issue raised in Zepeda’s § 2255 motion, it demonstrates 7 that the decision to stipulate to admission of the certificate was a tactical choice by trial 8 counsel. (Doc. 55 at 22). The Court agrees and holds the stipulation of the certificate, 9 although ultimately not a winning strategy, was a constitutionally adequate trial tactic. 10 Cf. United States v. Quintero-Barraza, 78 F.3d 1344, 1348 (9th Cir. 1995) (“In fact, there 11 exists a ‘strong presumption that counsel rendered adequate assistance and made all 12 significant decisions in the exercise of reasonable professional judgment.’”) (quoting 13 United States v. Palomba, 31 F.3d 1456, 1460 (9th Cir. 1994) (internal quotation marks 14 omitted)). 15 Zepeda argues trial counsel was ineffective because “counsel failed to object or 16 request curative action when, after observing and acknowledging that a juror was 17 sleeping during victim [DP’s] testimony, the trial judge failed to conduct a required 18 inquiry.” (Doc. 1 at 13). The Ninth Circuit’s memorandum disposition rejected Zepeda’s 19 related argument “that the district court erred in failing to conduct an evidentiary hearing 20 when the prosecutor alerted her that a juror was asleep.” See Zepeda, 506 F.App’x at 21 538. The court reasoned: “‘A single juror’s slumber . . . is not per se plain error.’ Zepeda 22 failed to demonstrate that the juror’s inattention ‘deprived him of his right to an impartial 23 jury and, more generally, to a fair trial’ because the record reflects that the juror was 24 asleep during key testimony that incriminated him. The juror’s inattention therefore, if 25 anything, was harmful to the government.” Id. (quoting United States v. Olano, 62 F.3d 26 1180, 1189 (9th Cir. 1995)). Ineffective assistance of counsel under Strickland requires 27 that the ineffectiveness prejudices the defense. See Strickland, 466 U.S. at 687. 28 However, the reasoning of the Ninth Circuit memorandum disposition in Zepeda

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1 precludes the finding that Zepeda’s defense was prejudiced by his counsel’s or the 2 Court’s failure to more deeply probe the situation surrounding the sleeping juror. 3 Zepeda argues his trial counsel was ineffective for failing to challenge whether the 4 predicate offenses underlying the § 924(c) weapons charges could qualify as crimes of 5 violence. (Doc. 1 at 14). Zepeda contends trial counsel should have argued his predicate 6 offenses were not crimes of violence within the meaning of 18 U.S.C. § 924(c)(3)(A), 7 (B). Zepeda’s claim with respect to 18 U.S.C. § 924(c)(3)(A) was rejected by the Ninth 8 Circuit en banc decision. See Zepeda, 792 F.3d at 1116. It was not ineffective assistance 9 of counsel for Zepeda’s trial counsel not to raise this meritless argument. Cf. Baumann, 10 692 F.2d at 572. Zepeda’s claim with respect to 18 U.S.C. § 924(c)(3)(B) relies on the 11 Supreme Court’s interpretation in Johnson v. United States, 559 U.S. 133 (2010). (Doc. 12 1 at 14, 25). Johnson was not decided until after Zepeda’s trial. It was not unreasonable 13 for trial counsel to rely on the understanding of law that prevailed at the time of trial. Cf. 14 Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (“The reasonableness of counsel’s 15 performance is to be evaluated from counsel’s perspective at the time of the alleged error 16 and in light of all the circumstances, and the standard of review is highly deferential.”) 17 (citations omitted). Counsel cannot be expected to possess prescient knowledge of the 18 Supreme Court’s rulings before they occur. See United States v. Zamudio, 787 F.3d 961, 19 966 (9th Cir. 2015) (“Strickland does not require attorneys to make arguments based on 20 cases that have not yet been decided.”). 21 C. Ballistics report 22 Zepeda argues his rights under the Confrontation Clause were violated by the 23 introduction of a ballistics report, based on stipulation of counsel, without testimony from 24 its author. (Doc. 1 at 9). This issue is similar to whether Zepeda’s Confrontation Clause 25 rights were violated by introduction of the Tribal Enrollment Certificate. In analyzing 26 that question, the Ninth Circuit held, “our case law recognizes that ‘defense counsel may 27 waive an accused’s constitutional rights as a part of trial strategy. Counsel’s authority 28 extends to waivers of the accused’s Sixth Amendment right to cross-examination and

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1 confrontation.” Zepeda, 738 F.3d at 207 (citing United States v. Gamba, 541 F.3d 895, 2 900 (9th Cir. 2008); Wilson v. Gray, 345 F.2d 282, 287-88 (9th Cir. 1965)). Zepeda’s 3 counsel therefore had authority to stipulate to admission of the ballistics report, and to 4 waive his right of confrontation. 5 D. Sufficient evidence of scienter 6 Zepeda argues there was insufficient evidence of his mental state to obtain a 7 conviction because of a lack of voluntary intoxication instruction. (Doc. 1 at 17). As the 8 R&R clearly notes, Zepeda has failed to show how the lack of an instruction 9 demonstrates insufficient evidence of the requisite mental state. (Doc. 55 at 25). The 10 record demonstrates there was ample evidence at trial from which the jury could infer 11 that Zepeda had the requisite mental state. For example, there was evidence that Zepeda 12 pre-planned by bringing guns and by telling Matthew to shoot if he heard gunshots. 13 Zepeda, 792 F.3d at 1107. This evidence was sufficient for a jury to infer Zepeda’s 14 intent. Cf. United States v. Carranza, 289 F.3d 634, 641-42 (9th Cir. 2002) (“A 15 challenge to the sufficiency of the evidence requires this court to determine if ‘after 16 viewing the evidence in the light most favorable to the prosecution, any rational trier of 17 fact could have found the essential elements of the crime beyond a reasonable doubt.’”) 18 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Moreover, Zepeda has adduced 19 no evidence that would tend to show he had achieved so severe a level of intoxication 20 that he would have been precluded from forming the requisite intent. 21 E. Sufficient evidence of assault 22 Zepeda argues the “evidence was insufficient as to the charges of assault with a 23 dangerous weapon upon [SA], [C], and [DP], and as to the charge of Assault resulting in 24 Serious Bodily Injury as to [DP].” (Doc. 1 at 21). Specifically, Zepeda argues that no 25 one saw him strike SA with a gun and that no evidence showed Zepeda actually fired 26 while pointing a gun in their direction. (Doc. 1 at 21-23). 27 But there was evidence of significant injuries, and the jury could reasonably infer 28 that Zepeda shot the gun in the direction of the victims. Because firing a weapon in the

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1 direction of SA, C, and DP satisfies the standard for assault with a dangerous weapon, see 2 18 U.S.C. § 113(a)(3), it need not be proven that Zepeda hit SA with the gun. 3 There was substantial circumstantial evidence that Zepeda shot at SA, DP, and C. 4 DP testified he suffered wounds from a shotgun and from a 9mm sidearm. (CR-08- 5 01329-PHX-ROS-1 Doc. 189 at 30). Matthew testified he had the shotgun. (CR-08- 6 01329-PHX-ROS-1 Doc. 188 at 18). A witness testified she saw Zepeda pointing “a 7 handgun” and heard gunshots. (CR-08-01329-PHX-ROS-1 Doc. 187 at 53-54). No one 8 testified they saw a person other than Matthew or Zepeda holding a gun, or that DP had a 9 gun. See, e.g., (CR-08-01329-PHX-ROS-1 Doc. 187 at 93) (“Q. Did you ever see [DP] 10 with a gun? A. No.”); (CR-08-01329-PHX-ROS-1 Doc. 188 at 18) (“Q. And is it your 11 testimony today that you don’t know because you didn’t actually see a gun -- A. Yes. Q. 12 -- other than the shotgun that you had? A. Other than the shotgun I had.”); (CR-08- 13 01329-PHX-ROS-1 Doc. 188 at 82) (“Q. . . No one indicated that [DP] had a firearm; 14 correct? A. That’s correct, sir.”). An FBI agent testified that 21 9mm cartridges cases, 15 all from the same brand, were found at the crime scene. (CR-08-01329-PHX-ROS-1 16 Doc. 187 at 63). Ballistics analysis associated 18 of 21 cartridges casings with the same 17 firearm. (CR-08-01329-PHX-ROS-1 Doc. 187 at 65). 9mm ammunition, bearing the 18 same brand markings as the ammunition found at the crime scene, was discovered in 19 Zepeda’s bedroom. (CR-08-01329-PHX-ROS-1 Doc. 187 at 67-69). In short, there was 20 ample evidence from which the jury could determine that Zepeda shot at SA, DP, and C, 21 and that his shots caused serious bodily injury to DP. 22 F. No sentencing error 23 Zepeda argues his sentence on the predicate offenses was “procedurally and 24 substantively unsound” based on the Court’s belief that it lacked discretion to alter the 25 sentences on those offenses in light of the significant mandatory minimum sentences he 26 received on his § 924(c) charges. (Doc. 1 at 25). Zepeda argues the Supreme Court’s 27 decision in United States v. Dean, 137 S.Ct. 1170 (2017), is a retroactively applicable 28 change in law that allows sentencing judges to consider applicable mandatory minimum

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1 sentences in sentencing on predicate offenses. (Doc. 1 at 23-25). 2 In Garcia v. United States, the Ninth Circuit held Dean does not apply 3 retroactively. Garcia v. United States, 923 F.3d 1242, 1245 (9th Cir. 2019) (“Garcia 4 contends that Dean announced a substantive rule because it ‘altered the substantive reach 5 of § 924(c) . . . .’ That argument fails, however, because Dean’s rule is permissive, not 6 mandatory.”). Zepeda’s claim that Dean applies retroactively to his sentencing is 7 therefore precluded by Garcia. 8 G. Crimes of violence under 18 U.S.C. § 924(c)(1) 9 1. Johnson and Borden 10 Zepeda argues that none of his predicate offenses qualify as crimes of violence 11 within the meaning of § 924(c) after the decision in Johnson v. United States, 576 U.S. 12 591 (2015) and United States v. Borden, 141 S.Ct. 1817 (2021). 13 In its original 2017 response, the government argued Zepeda is procedurally 14 barred from raising a Johnson argument because Johnson was decided before his direct 15 appeal concluded. (Doc. 13 at 31). The government also contended Johnson was 16 distinguishable because it was not concerned with § 924(c), Ninth Circuit precedent 17 adverse to Zepeda’s position controlled, and Zepeda’s assault with a dangerous weapon is 18 a crime of violence pursuant to § 924’s “elements clause.” (Doc. 13 at 34-35). The 19 Court stayed proceedings to await decision in several Ninth Circuit and Supreme Court 20 cases. (Doc. 55 at 31-32). Borden, the final decision in those cases, holds, “[o]ffenses 21 with a mens rea of recklessness do not qualify as violent felonies under ACCA.” Borden, 22 141 S.Ct. at 1834. 23 As a result of Borden, the government now agrees with Zepeda that his 24 “conviction on Count 3 should be vacated because the predicate, assault resulting in 25 serious bodily injury, can no longer be considered a crime of violence.” (Doc. 48 at 5). 26 However, the parties disagree whether Zepeda’s convictions on Counts 5, 7, and 9 27 should be vacated as well. Counts 5, 7, and 9 were predicated on the assault with a 28 dangerous weapon convictions in Counts 4, 6, and 8. (Doc. 48 at 5). The government

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1 contends assault with a dangerous weapon remains a crime of violence sufficient to 2 satisfy § 924(c). (Doc. 48 at 5). The government relies on United States v. Gobert, 3 which held, “there is simply no room to find assault with a dangerous weapon under § 4 113(a)(3) anything but a crime of violence under § 924(c)(3)(A)’s elements clause.” 5 United States v. Gobert, 943 F.3d 878, 882 (9th Cir. 2019). Zepeda argues Gobert cannot 6 be reconciled with the Supreme Court’s subsequent decisions in Borden and Stokeling v. 7 United States, 139 S.Ct. 544 (2019). 8 If Borden applies retroactively to Zepeda’s § 2255 motion, the Court agrees with 9 the parties that Count 3 must be vacated because assault resulting in serious bodily injury 10 is not a crime of violence. Borden may also displace Gobert. But, because Borden was 11 decided several years after Zepeda’s conviction became final following direct review, it 12 must first be demonstrated that Borden applies retroactively. 13 2. Borden applies retroactively 14 Borden applies retroactively to Zepeda’s collateral review motion. In Bousley v. 15 United States, the Supreme Court held that a habeas petitioner who was convicted under 16 § 924(c)(1) could obtain an evidentiary hearing to demonstrate his actual innocence in 17 light of a recent decision interpreting § 924(c) in a manner that would have precluded his 18 guilt. Bousley v. United States, 523 U.S. 614, 623-24 (1998); cf. Vosgien v. Persson, 742 19 F.3d 1131, 1134-35 (9th Cir. 2014) (applying Bousley). 20 As in Bousley, Zepeda is seeking to avail himself of a Supreme Court decision 21 interpreting § 924(c) published after his conviction became final. If the after-arising 22 decision set forth a new constitutional rule of criminal procedure, Zepeda would have to 23 satisfy Teague v. Lane’s retroactivity standard. See Bousley, 523 U.S. at 619-20 24 (discussing Teague v. Lane, 489 U.S. 288 (1989)). But as Bousley recognizes, “decisions 25 of [the Supreme] Court holding that a substantive federal criminal statute does not reach 26 certain conduct, . . . necessarily carry a significant risk that a defendant stands convicted 27 of ‘an act that the law does not make criminal.’ For under our federal system it is only 28 Congress, and not the courts, which can make conduct criminal.” Bousley, 523 U.S. at

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1 620-21 (quoting Davis v. United States, 417 U.S. 333, 346 (1974)). The petitioner in 2 Bousley was permitted to use a case interpreting the text of § 924(c) to support his claim 3 of actual innocence, even though that case, Bailey v. United States, 516 U.S. 137, 144 4 (1995) (holding “use” of a firearm requires the government to show “active employment 5 of the firearm” to obtain conviction under § 924(c)), was decided after his conviction 6 became final. See Bousley, 523 U.S. at 621, 624. Zepeda is entitled to the same 7 opportunity. 8 3. Count 3 will be vacated; Counts 5, 7, 9 will not be vacated 9 Because the Court is satisfied Borden applies to Zepeda’s § 2255 motion, it must 10 reach the merits of Zepeda’s claims as to Counts 3, 5, 7, and 9. The Supreme Court has 11 held that “crime[s] of violence” must be determined based on a “categorical approach,” 12 which asks “whether the least serious form of the offense meets the Johnson standard” 13 for a crime of violence. See Gobert, 943 F.3d at 881 (citing Mathis v. United States, 136 14 S.Ct. 2243, 2248 (2016); Moncrieffe v. Holder, 569 U.S. 184, 190-91 (2013)). Thus, the 15 question is whether the least serious form of Zepeda’s assault convictions could be 16 accomplished with merely a reckless or negligent mental state. 17 The Court agrees with the parties and the R&R that Borden requires vacatur of the 18 conviction and sentence on Count 3, the § 924(c) conviction predicated on Zepeda’s 19 conviction in Count 2 for assault resulting in serious bodily injury. The Court’s jury 20 instruction provided as an element of assault resulting in serious bodily injury: “the 21 defendant intentionally or recklessly struck or wounded [DP] or used a display of force 22 that reasonably caused [DP] to fear immediate bodily harm.” (CR-08-01329-PHX-ROS- 23 1 Doc. 123 at 27) (emphasis added); see also United States v. Loera, 923 F.2d 725, 728 24 (9th Cir. 1991) (“At common law a criminal battery was shown if the defendant’s 25 conduct was reckless . . . A defendant can be convicted of assault under section 113(f) if 26 a battery is proved.”). Thus, it is possible that Zepeda was convicted on the basis of mere 27 recklessness because the statute and the jury instruction both permitted conviction on the 28 basis of a mental state less than purpose or knowledge. Zepeda’s conviction and sentence

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1 on Count 3 will be vacated. 2 However, Zepeda’s conviction on Counts 5, 7, and 9 will not be vacated for two 3 reasons. First, the Ninth Circuit’s decision in Gobert is extant. Gobert clearly held 4 assault with a dangerous weapon is a crime of violence under § 924(c)(3)(A) because a 5 display of force with a dangerous weapon that causes a victim to fear imminent bodily 6 injury (the least serious form of assault with a dangerous weapon) is a crime of violence. 7 See Gobert, 943 F.3d at 882. As the R&R points out, Gobert was decided after all the 8 cases Zepeda relies on except Borden. (Doc. 55 at 36). Even if it were true that Gobert 9 is wrongly decided, it is controlling precedent which this Court is bound to follow. 10 Second, assault with a dangerous weapon is distinguishable from assault resulting 11 in serious bodily injury because although the latter requires mere recklessness, the former 12 can only be satisfied by proof of intent. The Court’s instruction regarding assault with a 13 dangerous weapon provided: “First, the defendant intentionally assaulted the victim by 14 striking or wounding him/her or using a display of force that reasonably caused the 15 victim to fear immediate bodily harm; Second, the defendant acted with specific intent to 16 do bodily harm to the victim.” (CR-08-01329-PHX-ROS-1 Doc. 123 at 28). The federal 17 statute prohibiting assault is in accord. See 18 U.S.C. § 113(a)(3) (prohibiting “[a]ssault 18 with a dangerous weapon, with intent to do bodily harm”) (emphasis added). The logic 19 of Borden therefore does not remove assault with a dangerous weapon from the reach of 20 the “crime of violence” definition in § 924(c). Any hypothetical case examined under the 21 Supreme Court’s “categorical approach,” see Johnson, 576 U.S. at 596, would require 22 purpose to cause harm or knowledge that harm will be caused, both of which are greater 23 than recklessness. 24 The parties and the R&R agree that, as a result of vacatur of Count 3, the 25 appropriate relief is for the Court to vacate Zepeda’s sentence on all counts and conduct a 26 resentencing. (Doc. 55 at 37) (citing Doc. 48; Doc. 53 at 28). The Court has jurisdiction 27 to resentence Zepeda, and accordingly will do so. See United States v. McClain, 133 28 F.3d 1191, 1193 (9th Cir. 1998) (holding that “following a successful § 2255 petition to

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1 vacate a § 924(c) conviction and sentence, the district court has the authority to 2 resentence a defendant . . . because the vacation of the § 924(c) sentence ‘unbundled’ the 3 sentencing package”) (internal citations omitted); see also United States v. Avila 4 Anguiano, 609 F.3d 1046, 1049 (9th Cir. 2010) (“Such ‘unbundling’ is often warranted 5 because conviction on the reversed counts may have affected the remaining counts.”). 6 H. Vouching 7 Zepeda argues the prosecution improperly vouched for his co-defendants. (Doc. 1 8 at 8, 15). Specifically, Zepeda argues “[p]rosecutors informed jury that co-defendants 9 plead guilty and testified hoping to receive reduced sentence, thus improperly vouching 10 for their reliability.” (Doc. 1 at 8). 11 “Vouching consists of placing the prestige of the government behind a witness 12 through personal assurances of the witness’s veracity, or suggesting that information not 13 presented to the jury supports the witness’s testimony.” Necoechea, 986 F.2d at 1276. 14 Not all questions regarding guilty pleas constitute prohibited vouching. “[W]hen the 15 prosecution examines the codefendant as its witness in support of its case-in-chief, a 16 question about the guilty plea is legitimate as the purpose is to support the reasonableness 17 of the witness’ claim to firsthand knowledge because of admitted participation in the very 18 conduct which is relevant.” United States v. Halbert, 640 F.2d 1000, 1005 (9th Cir. 19 1981). But the prosecution may not use a guilty plea to vouch for a codefendant as a 20 witness. See id. (citing United States v. Little Boy, 578 F.2d 211 (8th Cir. 1978)). 21 The Court finds improper vouching did not occur. Matthew Zepeda testified over 22 the course of two days, October 21 and 22, 2009. The prosecutor mentioned Matthew 23 Zepeda’s plea agreement only once during the first day of testimony: 24 Q. And under your plea agreement, you plead to testify truthfully; is that correct? 25 A. That’s correct. 26 Q. And you also were given a benefit; is that correct? 27 A. Yes, that is. 28 Q. The benefit that you received is that you would receive a prison sentence of

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1 between five years and ten years in prison; is that correct? 2 A. That’s correct. 3 (CR-08-01329-PHX-ROS-1 Doc. 187 at 30). On the second day of Matthew’s testimony, 4 during redirect examination, Matthew and the prosecutor engaged in an extended 5 colloquy regarding Matthew’s plea to the same effect as the mention of the plea on the 6 first day. (CR-08-01329-PHX-ROS-1 Doc. 188 at 4, 6, 8-9, 10-11, 14-17, 20). The 7 prosecution also asked the third Zepeda co-defendant, Jeremy, about Jeremy’s plea on 8 two occasions that day. (CR-08-01329-PHX-ROS-1 Doc. 188 at 96, 143). All of the 9 discussion with Matthew and Jeremy focused either on establishing that a plea had 10 occurred, or discussing the thought process behind the decision to plea. 11 Upon review of the record, the Court has not found any vouching statements. 12 And, of greater significance, Zepeda has not identified any of these statements that he 13 believes constitutes vouching. (Doc. 1 at 8, 15). All of the statements in the transcript 14 appear to merely concentrate on the plea itself and establishing the witnesses’ own 15 testimonial credibility, rather than “plac[e] the prestige of the government behind a 16 witness through personal assurances of the witness’s veracity.” See Neocoechea, 986 17 F.2d at 1276. Thus, Zepeda’s claim that prosecutorial vouching denied him a fair trial 18 fails on the merits. 19 II. Motion for compassionate release or to reduce sentence 20 On July 29, 2021, Zepeda filed an Amended Motion for Compassionate Release/ 21 Sentencing Reduction Pursuant to 18 U.S.C. § 3582(c)(1)(A). (CR-08-01329-ROS Doc. 22 246 at 1). 18 U.S.C. § 3582(c) provides three circumstances in which a court may 23 modify a term of imprisonment. First, the Court may modify a sentence if “extraordinary 24 and compelling reasons warrant such a reduction.” 18 U.S.C. § 3582(c)(1)(A)(i). 25 Second, if a defendant satisfies age and duration-of-incarceration requirements and if the 26 Director of the Bureau of Prisons determines the defendant is not a danger to safety. § 27 3582(c)(1)(A)(ii). Third, if otherwise authorized by law. 18 U.S.C. § 3582(c)(1)(B). 28 Zepeda’s motion raises only the first ground for modification—extraordinary and

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1 compelling reasons. Upon review of the parties’ briefing, the Court concludes that 2 Zepeda has not established he is entitled to compassionate release. However, Zepeda’s 3 motion will be denied without prejudice to allow Zepeda to refile a motion for a reduced 4 sentence in conjunction with resentencing as required by this Order. The government 5 will respond and Zepeda will reply. The Court will consider and rule on the motion at 6 resentencing. 7 A. Zepeda has failed to demonstrate extraordinary or compelling reasons 8 warrant his immediate release 9 The parties agree that Zepeda has exhausted administrative resources for 10 compassionate release, as required by 18 U.S.C. § 3582(c)(1)(A), such that he may bring 11 this motion. (CR-08-01329-PHX-ROS-1 Doc. 269 at 7). 12 Zepeda argues sentence reduction or compassionate release are warranted by some 13 combination of: (1) the severity of his sentence relative to others who commit similar 14 crimes; (2) the enactment of the First Step Act of 2018, which decreased the mandatory 15 minimum sentences for persons who commit the crimes he committed; (3) his youth at 16 the time he committed the crimes for which he was convicted; (4) his good behavior 17 while in prison; and (5) alleged risk factors that place him at greater risk of severe 18 outcomes if he is reinfected with COVID-19 or a variant thereof. (CR-08-01329-PHX- 19 ROS-1 Doc. 246 at 20-35). 20 The government argues in response that neither sentence reduction nor 21 compassionate release are warranted because: (1) the First Step Act does not apply 22 retroactively; (2) Zepeda’s age does not constitute extraordinary or compelling reasons 23 justifying immediate release; (3) Zepeda’s fear of COVID-19 does not warrant release; 24 and (4) Zepeda may continue to pose a danger to the community if released. (CR-08- 25 01329-PHX-ROS-1 Doc. 269 at 10-19). 26 Because the policy statement governing compassionate release motions under § 27 3582(c)(1)(A) has not been updated since the First Step Act was enacted, “district courts 28 are ‘empowered . . . to consider any extraordinary and compelling reason for release that

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1 a defendant might raise.’” United States v. Aruda, 993 F.3d 797, 801 (9th Cir. 2021) 2 (quoting United States v. McCoy, 981 F.3d 271, 284 (4th Cir. 2020)) (modifications in 3 original). The Court will therefore address each ground raised by Zepeda in turn to 4 determine whether the grounds individually or collectively warrant relief. 5 Zepeda is correct that his sentence is severe relative to others who commit similar 6 crimes. He points out that, in 2019, the median sentence for murder was 20 years; for 7 sexual abuse, 15 years; and for kidnapping, 10 years. (CR-08-01329-PHX-ROS-1 Doc. 8 246 at 27) (citing U.S. SENT’G COMM’N, 2019 ANN. REP. & SOURCEBOOK OF FED. 9 SENT’G STATS., 64 (2020) [hereinafter U.S. Sentencing Commission 2019 Sourcebook]). 10 In other words, Zepeda’s 90-year sentence is more than four times longer than the longest 11 median sentence for any type of crime available in the U.S. Sentencing Commission’s 12 2019 sourcebook. Zepeda’s 90-year sentence is sixty times longer than the median 13 sentence for assault, the principal or predicate offense in 8 of Zepeda’s 9 charges. See 14 U.S. Sentencing Commission 2019 Sourcebook, at 64. 15 Zepeda is also correct that, if sentenced today, he would receive a shorter 16 sentence. Section 403(a) of the First Step Act amended § 924(c) such that the stacking 17 mandatory minimum sentences for a second or subsequent conviction of § 924(c) only 18 applies if the defendant’s first § 924(c) conviction is final at the time of the second or 19 subsequent conviction. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 § 20 403(a); Maumau, 993 F.3d at 824. Zepeda had no prior § 924 conviction at the time of 21 his conviction in CR-08-01329-PHX-ROS-1. He therefore would be outside the reach of 22 § 924(c) today. The overwhelming majority of Zepeda’s total sentence—1,020 of 1,083 23 months—is based on his § 924(c) offenses. (Doc. 55 at 3). 24 The government suggests that the disparity of Zepeda’s sentence as a result of the 25 First Step Act should not be considered because Zepeda’s motion “essentially asks this 26 Court to retroactively apply the First Step Act’s provisions, which contravenes the” 27 provision of the First Step Act’s non-retroactivity provision. (CR-08-01329-PHX-ROS-1 28 Doc. 269 at 10). The government cites as support United States v. Jarvis, 999 F.3d 442,

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1 445-46 (6th Cir. 2021)5 and United States v. Thacker, 4 F.4th 569, 574 (7th Cir. 2021), 2 which held sentence disparities resulting from the First Step Act do not constitute 3 extraordinary or compelling reasons because of the First Step Act’s non-retroactivity 4 provision. Zepeda relies on cases such as McCoy, 981 F.3d at 285-86 and United States 5 v. Maumau, 993 F.3d 821, 838 (10th Cir. 2021), which held sentence disparities resulting 6 from the First Step Act could constitute extraordinary or compelling reasons justifying 7 compassionate release.6 8 The Court is persuaded by the Fourth and Tenth Circuits. Zepeda is not asking the 9 Court to apply the First Step Act retroactively. Rather, Zepeda is asking the Court to 10 consider the relative severity of his sentence as one of many factors to be considered in 11 the compassionate release or sentence reduction analysis. The Court does not believe that 12 it must blind itself to the severity of a movant’s sentence when conducting compassionate 13 release analysis under 18 U.S.C. § 3582(c)(1)(A)(i). In United States v. McGee, the 14 Tenth Circuit reasoned, 15 [t]he plain text of § 401(c) of the First Step Act makes clear that Congress chose not to afford relief to all defendants who, 16 prior to the First Step Act, were sentenced to mandatory life imprisonment under § 841(b)(1)(A). But nothing in § 401(c) 17 or any other part of the First Step Act indicates that Congress 18 5 The Sixth Circuit has been inconsistent on this issue. Compare United States v. Owens, 996 F.3d 755, 763-64 (6th Cir. 2021) with Jarvis, 999 F.3d at 445-46. 19 6 There is a split among circuits over whether the First Step Act’s modification of § 924 may contribute to the extraordinary and compelling reasons for a reduced sentence or 20 compassionate release. The Fourth and Tenth Circuits have held that it may be considered in the extraordinary and compelling analysis. See McCoy, 981 F.3d at 285-86 21 (“We think courts legitimately may consider, under the ‘extraordinary and compelling reasons’ inquiry, that defendants are serving sentences that Congress itself views as 22 dramatically longer than necessary or fair.”); McGee, 992 F.3d at 1047; Maumau, 993 F.3d at 837. The Third and Seventh Circuits have held the opposite. See United States v. 23 Andrews, 12 F.4th 255, 260-61 (3d Cir. 2021) (“The duration of a lawfully imposed sentence does not create an extraordinary or compelling circumstance.”); United States v. 24 Thacker, 4 F.4th 569, 574 (7th Cir. 2021) (“[T]here is nothing ‘extraordinary’ about leaving untouched the exact penalties that Congress prescribed and that a district court 25 imposed for particular violations of a statute.”). The Sixth Circuit has been inconsistent on this issue. See supra note 5. In United States v. Tomes, 990 F.3d 500, 505 (6th Cir. 26 2021), it held sentence disparity as a result of the First Step Act could not be considered. But in Owens, 996 F.3d at 763-64, it held it could be considered and characterized Tomes 27 as merely holding that sentence disparity could not be the only basis for § 3582(c)(1)(A)(i) relief. The Ninth Circuit has not addressed the issue. A petition for 28 certiorari currently pends before the Supreme Court seeking to resolve the split. See Brief for Petitioner, Jarvis v. United States, No. 21-568.

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1 intended to prohibit district courts, on an individualized, case- by-case basis, from granting sentence reductions under § 2 3582(c)(1)(A)(i) to some of those defendants. 3 United States v. McGee, 992 F.3d 1035, 1047 (10th Cir. 2021). This does not mean the 4 sentencing disparity is or could be sufficient by itself, or that the Court will apply the 5 First Step Act to Zepeda at this juncture. It merely means the Court will consider the 6 relative severity of Zepeda’s sentence as one of many factors in determining whether a 7 sentence reduction is appropriate under § 3582(c)(1)(A)(i), as other courts have done. 8 See, e.g., McCoy, 981 F.3d at 285-86; Owens, 996 F.3d at 761-63 (collecting cases); 9 McGee, 992 F.3d at 1047; Maumau, 993 F.3d at 837; United States v. McDonel, 513 10 F.Supp.3d 752, 756-57 (E.D. Mich. 2021); United States v. Quinn, 467 F.Supp.3d 824, 11 831 (N.D. Cal. 2020); United States v. Price, 496 F.Supp.3d 83, 87-90 (D.D.C. 2020); 12 Bellamy v. United States, 474 F.Supp.3d 777, 786 (E.D. Va. 2020); United States v. 13 Stephenson, 461 F.Supp.3d 864, 874 (S.D. Iowa 2020). 14 Zepeda’s sentence was greater after trial than what he would have received if he 15 pled pursuant to the plea agreement offered. Zepeda was initially offered a 10-year 16 sentence in exchange for pleading guilty. (CR-08-01329-PHX-ROS-1 Doc. 246 at 29). 17 The prosecution pursued charges that, if proven, guaranteed a sentence greater than 80 18 years. By contrast, Zepeda’s co-defendants entered into plea agreements that resulted in 19 a sentence of 75 months for Matthew and three years for Jeremy (later reduced to time- 20 served). (CR-08-01329-PHX-ROS-1 Doc. 269 at 4). If Zepeda had pled guilty, and thus 21 forfeited several constitutional rights, he would have benefited from lenient treatment, 22 like his brothers. Instead, he received a de facto life sentence. The prosecution 23 committed no wrongdoing, nor was it unethical or unusual for the government to pursue 24 Zepeda’s conviction in this manner after he failed to accept the plea agreement. 25 Nevertheless, the Court will consider the penalty Zepeda suffered from his decision to 26 proceed to trial. 27 In a recent case, United States v. Maumau, the Tenth Circuit upheld 28 compassionate release in a similar case involving an inmate who received a 57-year

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1 sentence due to § 924(c)’s consecutive mandatory minimums. Maumau, 993 F.3d at 837. 2 The defendant, Kepa Maumau, robbed three stores with the aid of a fellow gang member. 3 Id. at 824-25. He was convicted on one count of Hobbs Act robbery, one count of 4 conspiracy to commit racketeering, two counts of violence in aid of racketeering, and 5 three counts of using a gun during a crime of violence under § 924(c). Id. at 824. Like 6 Zepeda, Maumau turned down a 10-year plea deal and received a much longer sentence 7 due to § 924(c)’s stacking mandatory minimums prior to the First Step Act. Id. at 829. 8 The Tenth Circuit upheld compassionate release, reasoning that the district court had 9 authority to determine, based on the 18 U.S.C. § 3553(a) sentencing factors and the 10 relative disparity of Maumau’s long sentence, that extraordinary and compelling reasons 11 existed for Maumau’s release.7 Id. at 829, 831-33. 12 Zepeda presents similar reasons for release as Maumau. Like Maumau, he was 13 relatively young,8 with a limited criminal record,9 when he committed the offense for 14 which he received the severe sentence. Like Maumau, he alleges plans for residential and 15 employment placement if he is released.10 And, like Maumau, his sentence would have 16 been substantially shorter today because § 924(c), as amended by the First Step Act, 17 7 As amended by the First Step Act, 18 U.S.C. § 3582(c)(1)(A)(i) permits modification of a term of imprisonment if “extraordinary and compelling reasons warrant such a 18 reduction; . . . and that such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.” Maumau held the district court had discretion to 19 determine which factors were extraordinary and compelling and that those factors could be sufficient for compassionate release in the absence of an applicable policy statement 20 by the Sentencing Commission. Maumau, 993 F.3d at 831, 833-36. 8 Maumau was 20 when he committed the predicate offense to his § 924 convictions, 21 Maumau, 993 F.3d at 824; Zepeda was 23. (CR-08-01329-PHX-ROS-1 Doc. 246 at 4). 9 Maumau had no prior criminal record, Maumau, 993 F.3d at 827; Zepeda had no prior 22 felony or firearms offenses and had never served a jail term. (CR-08-01329-PHX-ROS-1 Doc. 246 at 5). Zepeda alleges two prior misdemeanor charges for marijuana were 23 dismissed as a result of Arizona Proposition 207, which legalized recreational marijuana use in this state. (CR-08-01329-PHX-ROS-1 Doc. 246 at 5). The marijuana offenses 24 comprised half of his four criminal history points at sentencing. (CR-08-01329-PHX- ROS-1 Doc. 246 at 5). Zepeda’s two other criminal history points came from two 25 misdemeanor assault charges. (CR-08-01329-PHX-ROS-1 Doc. 246 at 10). Zepeda received only a fine and probation terms for the assaults. (CR-08-01329-PHX-ROS-1 26 Doc. 246 at 28). 10 Zepeda says he has arranged for residential placement and employment at the Center 27 for Better Choices for Life. (CR-08-01329-PHX-ROS-1 Doc. 246 at 42). Based on the letters written by Zepeda’s family members that were provided to the Court, it also may 28 be that Zepeda could expect to reintegrate into his family unit if he were released. (CR- 08-01329-PHX-ROS-1 Doc. 246-1 at 76-86).

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1 would not apply to him.11 2 Despite all these considerations, compassionate release is not warranted. Zepeda 3 has failed to establish why extraordinary and compelling reasons justify his release 4 today.12 Compassionate release is an extraordinary remedy; a limited exception to the 5 general rule that federal courts are forbidden to modify a term of imprisonment once it 6 has been imposed. See Freeman v. United States, 564 U.S. 522, 526 (2011); Maumau, 7 993 F.3d at 830. Although Zepeda’s 90-year sentence is severe, that severity does not 8 warrant immediate release after he has served only 14% of the 90-year sentence. (CR- 9 08-01329-PHX-ROS-1 Doc. 269 at 4). 10 The Court appreciates the significance of the factors Zepeda has raised in support 11 of his motion for compassionate release. Zepeda is encouraged to maintain his good 12 behavior while incarcerated, to continue to pursue educational opportunities, and to 13 maintain supportive contact with his unincarcerated family. (CR-08-01329-PHX-ROS-1 14 Doc. 246 at 32-40). The Court does not minimize the risks inmates face as a result of the 15 COVID-19 pandemic, especially in light of the Omicron variant. But viewing all the 16 considerations Zepeda has raised, the Court holds he has made only the showing that 17 extraordinary and compelling reasons may exist for his sentence to be reduced. 18 B. Zepeda’s motion for reduced sentenced will be denied without prejudice 19 11 1,020 months of Zepeda’s 1,083-month sentence are attributable to his § 924(c) convictions, which were consecutive. (CR-08-01329-PHX-ROS-1 Doc. 269 at 4). 20 Zepeda’s sentence on the non-§ 924(c) convictions run concurrently for a total of 63 months. (CR-08-01329-PHX-ROS-1 Doc. 269 at 4). If the First Step Act had applied to 21 Zepeda, and the Court chose to impose consecutive sentences on all of his remaining convictions, he would have received 312 months (26 years). (CR-08-01329-PHX-ROS-1 22 Doc. 269 at 4). 12 Although Zepeda argues he is at elevated risk of contracting COVID-19, he has failed 23 to make the showing that would warrant immediate release. Zepeda claims he is at risk of diabetes and is obese, which would increase his risk of severe illness. (CR-08-01329- 24 PHX-ROS-1 Doc. 246 at 34). But Zepeda does not actually have diabetes and therefore the risk is hypothetical. (CR-08-01329-PHX-ROS-1 Doc. 246 at 36). Zepeda’s obesity 25 alone, although a potential risk factor, is not extraordinary and is not a compelling reason to justify release. Moreover, Zepeda would ecrease the risk of serious COVID-19 26 infection by becoming vaccinated. He has refused vaccination against COVID-19, which is his choice. (CR-08-01329-PHX-ROS-1 Doc. 269 at 15). Cf. United States v. Baeza- 27 Vargas, 532 F.Supp.3d 840, 843-44 (D. Ariz. 2021) (“Judges of this Court, as well as others around the country, have ruled with consistency that an inmate’s denial of a 28 COVID-19 vaccination weighs against a finding of extraordinary and compelling circumstances.”) (citations omitted).

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1 Because this Order vacates Zepeda’s sentence, the Court will deny Zepeda’s 2 request for reduced sentence without prejudice. In advance of his resentencing, Zepeda 3 may submit a motion for reduced sentence, the government will respond, and Zepeda 4 may reply and the Court will determine whether extraordinary and compelling reasons 5 warrant modifying Zepeda’s sentence beyond the reduction required by vacating his 6 conviction on Count 3.13 7 In the briefing on a possible sentence reduction, the parties should explain the 8 range of sentences that would have been available to Zepeda if the First Step Act changes 9 had applied to him, the range of sentences the Court should consider imposing at 10 resentencing, and the reasons and authorities supporting reducing Zepeda’s sentence, or 11 not. 12 CONCLUSION 13 The Court will vacate Zepeda’s conviction and sentence as to Count 3. The Court 14 will further vacate Zepeda’s sentence on the remaining counts so he can be resentenced. 15 Although the Court holds Zepeda is not entitled to compassionate release, the Court will 16 deny his motion (CR-08-01329-PHX-ROS-1 Doc. 246) without prejudice to allow 17 Zepeda to refile a motion for a reduced sentence which will be resolved at his 18 resentencing. 19 Accordingly, 20 IT IS ORDERED the Report and Recommendation (Doc. 55) is ADOPTED. 21 Petitioner’s Motion to Vacate, Set Aside, or Correct a Sentence under 28 U.S.C. § 2255 22 (Doc. 1; CR-08-01329-PHX-ROS-1 Doc. 236) is GRANTED IN PART. 23 IT IS FURTHER ORDERED Petitioner’s conviction and sentence as to Count 3 24 of the indictment—use of a firearm during a crime of violence—and Petitioner’s sentence 25 as to Counts 1, 2, 4, 5, 6, 7, 8, and 9 are VACATED. Petitioner will accordingly be 26 resentenced in future proceedings. 27 13 The Court also acknowledges there is a petition for certiorari pending before the Supreme Court which, if granted, could lead to a ruling that determines whether Zepeda’s 28 motion for compassionate release may be granted. See Brief for Petitioner, Jarvis v. United States, No. 21-568.

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1 IT IS FURTHER ORDERED a Certificate of Appealability is DENIED because 2 Petitioner has failed to make a substantial showing of the denial of a constitutional right 3 under 28 U.S.C. § 2253(c)(2). 4 IT IS FURTHER ORDERED Petitioner’s Amended Motion for Compassionate 5 Release/ Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(1)(A) is DENIED 6 WITHOUT PREJUDICE. Plaintiff shall file a renewed motion for reduced sentence no 7 later than February 7, 2022. Respondent shall file a response no later than February 28, 8 2022. Petitioner may then file a reply no later than March 10, 2022. The Court shall 9 schedule sentencing in a future order. 10 Dated this 11th day of January, 2022. 11 12 13 Honorable Roslyn O. Silver 14 Senior United States District Judge

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