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United States v. Sehorn

United States District Court, S.D. California

February 17, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
BOBBY LEE SEHORN (2) Defendant/Petitioner.

          ORDER

          WILLIAM Q. HAYES, United States District Judge

         The matter before the Court is the motion pursuant to 28 U.S.C. § 2255 filed by Defendant/Petitioner. (ECF No. 670). Defendant/Petitioner moves the Court to vacate his sentence based upon Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016).

         BACKGROUND FACTS

         The charges against the Petitioner and his co-defendants resulted from an armed jewelry store robbery in San Diego, California on July 1, 1992. On April 12, 1996, a jury found Petitioner guilty of Count 1, interference with commerce by robbery (Hobbs Act robbery), in violation of 18 U.S.C. § 1951(a); and Count 2, aiding and abetting the using and carrying of a firearm in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) and 18 U.S.C. § 2.

         The Presentence Investigation Report calculated the guideline range for Count 1 at 151-188 months. The report stated that Petitioner was subject to mandatory consecutive terms of twenty years on Count 2 for a second conviction under 18 U.S.C. § 924(c).[1]

         On August 30, 1996, the Court entered a Judgment sentencing Petitioner to a term of 161 months as to Counts 1, concurrent with Central District of Los Angeles Case No. 94-0362; and 240 months as to Count 2, consecutive to Count 1 and Central District of Los Angeles Case No. 94-0362. (ECF No. 462).

         Petitioner filed a timely appeal of his conviction on a number of grounds and the Court of Appeals affirmed Petitioner's conviction. United States v. Sehorn, 137 F.3d 1094, 1104 (9th Cir. 1998).

         Petitioner filed a motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 which was denied by the district court. (ECF No. 626).

         After Johnson, Petitioner filed a motion in the Court of Appeals seeking permission to file a second or successive petition under 28 U.S.C. § 2255. Petitioner contends that he is entitled to an order vacating his sentence based upon the decision of the Supreme Court in Johnson striking down the residual clause § 924(e)(2)(B)(ii) of the Armed Career Criminal Act as unconstitutional vague.

         On September 20, 2016, the Court of Appeals granted the application to file a second or successive 28 U.S.C. § 2255 motion and transferred Petitioner's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255 to this district court. (ECF No. 676).

         On February 7, 2017, Petitioner filed a supplemental pleading in support of his motion to vacate his sentence. (ECF No. 690).

         APPLICABLE LAW

         28 U.S.C. § 2255 provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. A petitioner seeking relief under § 2255 must file a motion within the one year statute of limitations set forth in § 2255(f). Section 2255(f)(3) provides that a motion is timely if it is filed within one year of "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3).

         CONTENTIONS OF THE PARTIES

         Petitioner contends that his sentence on Count 2 for violation of 18 U.S.C. § 924(c) must be vacated because Hobbs Act robbery is not, as a matter of law, a predicate crime of violence after Johnson. Petitioner contends that the holding in Johnson which invalidated the residual clause in the term "violent felony" of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(2)(B)(ii), applies equally to the residual clause in the term "crime of violence" in 18 U.S.C. § 924(c)(3)(B). Petitioner further asserts that Hobbs Act robbery is not a crime of violence under the force clause of § 924(c)(3)(A) because Hobbs Act ...


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