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Crespo v. United States

United States District Court, S.D. California

March 9, 2017

JAVIER CRESPO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 14-cr-1903 DMS

          ORDER DENYING (1) PETITIONER'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 AND (2) RESPONDENT'S MOTION TO STAY

          Hon. Dana M. Sabraw United States District Judge

         Pending before the Court is Petitioner Javier Crespo's Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255. Petitioner moves to vacate his sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). Respondent United States of America opposes, and it moves to stay proceedings pending a decision by the Supreme Court in Beckles v. United States, No. 15-8544, 2016 WL 1029080 (June 27, 2016) (order granting certiorari). For the reasons set out below, the Court denies the motion and denies as moot Respondent's motion to stay.

         I.

         BACKGROUND

         On September 30, 2014, Petitioner pleaded guilty to two counts of bank robbery, in violation of 18 U.S.C. § 2113(a), and the parties agreed that Petitioner was a career offender pursuant to U.S.S.G. § 4B1.1.

         The probation department prepared a Presentence Report (“PSR”) and determined that Petitioner was a career offender under § 4B1.1. According to the PSR, Petitioner's instant offenses qualified as crimes of violence under § 4B1.2(a) and prior drug trafficking offenses qualified as controlled substance offenses under § 4B1.2(b). This resulted in a total offense level of 29 and criminal history category VI. Accordingly, the PSR calculated a guideline range of 151 to 188 months. On December 18, 2014, the Court varied from the advisory guideline range and sentenced Petitioner to 100 months, followed by three years of supervised release.

         On June 16, 2016, Petitioner filed the present motion, challenging his sentence in light of the recent Supreme Court decision in Johnson.[1] Petitioner argues Johnson renders the residual clause of § 4B1.2(a)(2) unconstitutional, and further argues Johnson applies retroactively on collateral review pursuant to Welch. Thus, Petitioner contends he is entitled to relief because bank robbery no longer qualifies as a crime of violence because it could only qualify as a crime of violence under the residual clause, which is now unconstitutional under Johnson.

         II.

         LEGAL STANDARD

         A prisoner in custody may move the federal court that imposed a sentence upon him to vacate, set aside, or correct that sentence on 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[.]

28. U.S.C. § 2255(a). If the court determines that relief is warranted under § 2255, it must “vacat e and set the judg men t as ide” and “di s ch arge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. at § 2255(b).

         III.

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