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United States v. Casas

United States District Court, S.D. California

March 14, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARIE ELIZABETH CASAS, Defendant. Civil No. 16cv1339

          ORDER DENYING PLAINTIFF'S MOTION TO STAY, DENYING DEFENDANT'S § 2255 MOTION AND GRANTING CERTIFICATE OF APPEALABILITY

          Barry Ted Moskowitz Chief Judge.

         On June 2, 2016, Defendant Marie Elizabeth Casas filed a motion to vacate, set aside, or reduce her sentences pursuant to 28 U.S.C. § 2255. (ECF No. 54.)[1]In the Government's opposition to Defendant's motion, the Government also filed a motion to stay the proceedings. (ECF No. 57.) The Court heard oral argument on Defendant's motion on August 26, 2016. For the reasons discussed below, the Government's motion to stay is DENIED and Defendant's motion to vacate pursuant to § 2255 is DENIED.

         I. BACKGROUND

         Pursuant to a plea agreement, Defendant plead guilty to one count of Hobbs Act robbery, pursuant to 18 U.S.C. § 1951(a); one count of brandishing a firearm in furtherance of a crime of violence, pursuant to 18 U.S.C. § 924(c); and one count of attempted Hobbs Act robbery. (ECF No. 28.) Defendant was sentenced to 105 months for the Hobbs Act robbery counts, and a consecutive term of 84 months for the firearm count. (ECF No. 42.)

         Section 924(c) imposes a mandatory 7-year sentence for any person brandishing a firearm “during and in relation to any crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A). A “crime of violence” is further defined in two subsections. Under the “force clause, ” a crime of violence includes a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Under the “residual clause, ” a crime of violence includes a felony 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.” 18 U.S.C. § 924(c)(3)(B).

         In June 2015 the Supreme Court in Johnson v. United States, 135 S.Ct. 2251 (2015) held that the residual clause of the Armed Career Criminal Act (“ACCA”) violates the Constitution's guarantee of due process. The Court went on in Welch v. United States, 136 S.Ct. 1257 (2016) to state that Johnson “announced a substantive rule that has retroactive effect in cases on collateral review.” Id. at 1263.

         Defendant argues that she is entitled to relief under Johnson because, like the residual clause in the ACCA, the residual clause in 18 U.S.C. § 924(c) is unconstitutionally vague. Defendant also argues that Hobbs Act robbery is not a crime of violence under the force clause because it may be accomplished with de minimis force.

         II. DISCUSSION

         A. Motion to Stay

         The Government notes that the Ninth Circuit in United States v. Begay is currently considering the issue of whether the residual clause of § 924(c) is unconstitutionally vague in light of Johnson. Because Begay would potentially resolve the issue of whether the residual clause in § 924(c) is unconstitutionally vague, the Government requests a stay. However, the Court does not believe a stay would be appropriate.

         First, the Government has not demonstrated prejudice-a typical prerequisite for a stay. See Landis v. North American, 299 U.S. 248, 255 (1936) (“[T]he suppliant for a stay must make out a clear case of hardship or inequity in being required to go forward.”). Second, any decision by the Court on Johnson's applicability to the residual clause could easily be remedied in the event that the Ninth Circuit holds differently. In short, the Court does not see any reason not to proceed on the merits of Defendant's motion.

         B. Motion to Vacate or Correct Sentence

         1. Procedural Bars

         First, the Government argues that pursuant to the plea agreement, the Defendant waived any right to collaterally attack her sentence. However, the Ninth Circuit recently held that waiver does not apply if the defendant's sentence is illegal. See United States v. Torres, 828 F.3d 1113, 1124-25 (9th Cir. 2016). Accordingly, the Defendant here has not waived ...


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