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United States v. Espudo

United States District Court, S.D. California

May 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RUDY ESPUDO (1); MIGUEL GRADO (4). Defendants.

          ORDER DENYING PETITIONERS' MOTIONS TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 AND GRANTING CERTIFICATE OF APPEALABILITY

          HON. GONZALO P. CURIEL United States District Judge.

         Petitioners Rudy Espudo (“Espudo”) and Miguel Grado (“Grado”) (collectively “Petitioners”), proceeding with counsel, filed motions to vacate, set aside, or correct their sentence pursuant to 28 U.S.C § 2255. (Dkt. Nos. 1970, 1971.) Respondent filed an omnibus response to the petitions.[1] (Dkt. No. 2016). Petitioners filed their replies. (Dkt. Nos. 2019, 2020.) A hearing was held on January 30, 2017. (Dkt. No. 2042.) At the hearing, the Court requested supplemental briefing on certain issues. (Id.) On February 13, 2017, Respondent filed a supplemental brief and on February 20, 2017, Petitioners filed a supplemental response. (Dkt. Nos. 2044, 2047, 2048.) Based on the reasoning below, the Court DENIES Petitioners' motions to vacate, set aside or correct their sentence.

         Background

         On January 19, 2012, the Grand Jury returned an Indictment charging 40 defendants with Racketeer Influenced and Corrupt Organizations Act (“RICO”) conspiracy in violation of 18 U.S.C. § 1962(d) as well as numerous other counts for their involvement in the Mexican Mafia in the North San Diego County area. (Dkt. No. 1.) A Superseding Indictment was returned on August 2, 2012 as to counts charged against Petitioners Espudo and Grado. (Dkt. No. 627.)

         A. Miguel Grado

         On April 30, 2013, Grado pleaded guilty, without a plea agreement, to four counts in the Superseding Indictment: Count 1 for Conspiracy to Conduct Enterprise Affairs Through a Pattern of Racketeering Activity in violation of 18 U.S.C. § 1962(d); Count 2 for Conspiracy to Distribute Methamphetamine and Cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), 841(b)(1)(B)(ii), and 846; Count 8 for Aiding and Abetting Distribution of Methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2; and Count 11 for Aiding and Abetting Discharge of a Firearm in Relation to a Crime of Violence and a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2. (Dkt. Nos. 627; 1024; 1680.) Count 11 of the Superseding Indictment concerning the violation of § 924(c)(1)(A) charged,

Count 11
Discharge of a Firearm in Relation to a Crime of Violence and a Drug-Trafficking Crime
On or about October 15, 2011, within the Southern District of California, defendants MIGUEL GRADO . . . did knowingly and intentionally discharge a firearm during and in relation to a crime of violence and a drug-trafficking crime, to wit: the racketeering conspiracy alleged in Count 1 of this Superseding Indictment, in that said racketeering conspiracy involved the commission of the offenses specified in paragraph 15, subparagraphs a, c and e, of Count 1; and the conspiracy to distribute Schedule II Controlled Substances alleged in Count 2 of this Superseding Indictment; in violation of Title 18, United States Code, Sections 924(c)(1)(A), and 2 and Pinkerton v. United States, 328 U.S. 640 (2946).

(Dkt. No. 627 at 83-84.[2])

         The Presentence Investigation Report (“PSR”) calculated a United States Sentencing Guidelines (“USSG”) range of 235 to 293 months for Counts 1, 2 and 8 and a mandatory consecutive term of 10 years for Count 11. (Dkt. No. 1342 at 22, 24.) In the PSR, Count 11 was listed as “18 U.S.C §§ 924(c)(1)(A), and 2, Discharge of a Firearm in Relation to a Drug-Trafficking Offense, a Class C felony.” (Id. at 1.)

         At the change of plea hearing, references were made that Count 11 was based on a crime of violence and a drug trafficking crime under § 924(c), and Grado understood the maximum penalties he would face for this count. (Dkt. No. 1680.)

         On October 21, 2013, the sentencing judge sentenced Grado to 175 months in custody for Counts 1, 2, and 8 to run concurrently and 120 months custody as to Count 11 to run consecutive to Counts 1, 2 and 8 for a total of 295 months. (Dkt. Nos. 1538, 1585.) Grado did not appeal his sentence or conviction. In the Judgment, Count 11 was presented as “Discharge of a Firearm During and in Relation to a Crime of Violence and a Drug Trafficking Crime.” Id.

         B. Rudy Espudo

         On May 23, 2013, Espudo pled guilty, without a plea agreement, to three counts of the Superseding Indictment: Count 1 for Conspiracy to Conduct Enterprise Affairs Through a Pattern of Racketeering Activity in violation of 18 U.S.C. § 1962(d); Count 2 for Conspiracy to Distribute Methamphetamine and Cocaine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)(vii), 841(b)(1)(B)(ii), and 846; and Count 12 for Brandishing of a Firearm in Relation to a Crime of Violence and a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c)(1)(A) and 18 U.S.C. § 2. (Dkt. Nos. 627; 1971, Pet., Ex. B at 114.) Count 12 of the Superseding Indictment charged,

Count 12
Brandishing of a Firearm in Relation to a Crime of Violence and a Drug-Trafficking Crime
On or about November 16, 2011, within the Southern District of California, defendant RUDY ESPUDO did knowingly and intentionally brandish a firearm during and in relation to a crime of violence and a drug-trafficking crime, to wit: the racketeering conspiracy alleged in Count 1 of this Superseding Indictment, in that said racketeering conspiracy involved the commission of the offenses specified in paragraph 15, subparagraphs c, d and e, of Count 1; and the conspiracy to distribute Schedule II Controlled Substances alleged in Count 2 of this Superseding Indictment; in violation of Title 18, United States Code, Sections 924(c)(1)(A), and 2 and Pinkerton v. United States, 328 U.S. 640 (1946).

(Dkt. No. 627 at 84.)

         At the change of plea hearing, it was clarified that Espuda aided and abetted the brandishing of a firearm since he was not present at the scene. (Dkt. No. 1090, Espudo Change of Plea Hearing at 8[3].) As to Count 12, Espudo agreed to the maximum sentence to be imposed agreeing that the government would have to prove that he knowingly engaged in a RICO conspiracy which is a crime of violence and he “knowingly aided and abetted another individual in brandishing a firearm as part of the commission of a racketeering conspiracy involving extortion, robbery and distribution of controlled substances” which is a “crime of violence and drug-trafficking crime, as well as conspiracy to distribute controlled substance, a controlled substance, a drug-trafficking crime in violation of 21 U.S.C. section 841, 846.” (Id. at 31-32.)

         As to Counts 1 and 2, the PSR calculated a USSG range of 376 to 449 months with a mandatory consecutive term of 7 years for Count 12. (Dkt. No. 1513 at 35.) The PSR listed Count 12 as “Ct. 12:18 U.S.C § 924(c)(1)(A)(ii), and 2 and Pinkerton v. United States, 328 U.S. 640 (1946), Brandishing a Firearm in Relation to a Crime of Violence and a Drug-Trafficking Crime.” (Id. at 1.) At the sentencing hearing, the Court imposed 336 months custody for Counts 1 and 2 and seven years custody for § 924(c) to run consecutively. (Dkt. Nos. 1579, 1597.) According to the Judgment, Count 12 was listed as “Brandishing a Firearm During and in Relation to a Drug-Trafficking Crime.” (Dkt. No. 1597 at 1.) Espudo appealed his sentence but he subsequently filed a motion voluntarily dismissing his appeal which was granted on December 9, 2014.

         Discussion

         A. Legal Standard on 28 U.S.C. § 2255

         Section 2255 authorizes this Court to “vacate, set aside, or correct the sentence” of a federal prisoner 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). To warrant relief under section 2255, a prisoner must allege a constitutional or jurisdictional error, or a “fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         In their motions, Petitioners challenge the mandatory enhanced sentenced they received pursuant to 18 U.S.C. § 924(c) because RICO conspiracy is no longer a “crime of violence” under the residual clause based on the United States Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), where the Court held that a similar residual clause of the Armed Career Criminal Act of 1984 (“ACCA”) is void for vagueness.

         B. Johnson v. United States Ruling

         In Johnson v. United States, the United States Supreme Court held that imposing an increased sentence under the residual clause of the ACCA for “any crime punishable by imprisonment for a term exceeding one year . . . that - (ii) otherwise involves conduct that presents a serious potential risk of physical injury to another”, 18 U.S.C. § 924(e)(2)(B)(ii), violates the constitutional right to due process. Johnson, 135 S.Ct. at 2555. The ACCA “imposes a special mandatory fifteen year prison term upon felons who unlawfully possess a firearm and who also have three or more previous convictions for committing certain drug crimes or ‘violent felon[ies].'” Begay v. United States, 128 S.Ct. 1581, 1583 (2008). The ACCA defines a “violent felony” as follows:

any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another[4], or
(ii) is burglary, arson, or extortion, involves use of explosives, [5] or otherwise involves conduct that presents a serious potential risk of physical injury to another.[6]

18 U.S.C. § 924(e)(2)(B).

         In Johnson, the Court held the ACCA's residual clause is void for vagueness and “imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process.” Johnson, 135 S.Ct. at 2563. The Court explained that “[w]e are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges.” Id. at 2557. The Court expressly stated the decision does not apply to the remainder of the ACCA's definition of violent felony or the four enumerated offenses. Id. Moreover, it rejected the government and dissent's position that “dozens of federal and state criminal laws use terms like ‘substantial risk, ' ‘grave risk, ' and ‘unreasonable risk, ' suggesting that to hold the residual clause unconstitutional is to place these provisions in constitutional doubt” by responding, “[n]ot at all.” Id. at 2561.

         Section 924(c) is a sentencing enhancement provision that provides a series of mandatory consecutive sentences for using or carrying a firearm in furtherance of a “crime of violence or drug trafficking crime.” See 18 U.S.C. § 924(c).[7] Section 924(c)(3) defines the term “crime of violence” as:

an offense that is a felony and -
(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the ...

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