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United States v. Molina-Villanueva

United States District Court, S.D. California

July 24, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
ARTURO MOLINA-VILLANUEVA (2), Defendant-Petitioner.

          ORDER GRANTING MOTION FOR RECONSIDERATION, LIFTING STAY AND DENYING DEFENDANT'S § 2255 MOTION [ECF NOS. 227, 287, 290, 294]

          Barry Ted Moskowitz, Judge.

         Arturo Molina-Villanueva (“Defendant”) has filed a motion to vacate, set aside, or reduce his sentence pursuant to 28 U.S.C. § 2255, Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). (ECF No. 227.) The Court recently stayed consideration of Defendant's motion pending the Supreme Court's resolution of Sessions v. Dimaya, No. 15-1498, cert. granted sub nom. Lynch v. Dimaya, 137 S.Ct. 31 (Sept. 29, 2016). (ECF No. 280.) Defendant has moved for reconsideration of the stay. (ECF Nos. 287, 290, 294.) For the reasons discussed below, the Court grants Defendant's motion for reconsideration, lifts the stay, and denies Defendant's § 2255 motion.

         I. BACKGROUND

         On February 17, 2011, Defendant pled guilty pursuant to a plea agreement to one count of conspiracy to commit Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (Count 1), and one count of possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c) (Count 2). (ECF No. 72.) The “crime of violence” that served as the predicate for Defendant's conviction on Count 2 was his conviction on Count 1 for conspiracy to commit Hobbs Act robbery. On October 28, 2011, the Court sentenced Defendant to a term of 37 months on Count 1 and 60 months on Count 2, run consecutively for a total term of imprisonment of 97 months. (ECF Nos. 192, 193.)

         On June 26, 2015, the Supreme Court decided Johnson, in which it held that the residual clause definition of “violent felony” in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. On October 19, 2015, the Ninth Circuit decided Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), holding that the reasoning of Johnson applied to the residual clause definition of “crime of violence” in 18 U.S.C. § 16(b) so as to render it void for vagueness.

         On June 2, 2016, Defendant filed the instant § 2255 motion. He moves to vacate his conviction under § 924(c), arguing that the reasoning of Johnson and Dimaya apply to the residual clause definition of “crime of violence” in § 924(c)(3)(B) and lead to the conclusion that the latter statute is likewise unconstitutionally vague. On July 17, 2016, the government filed a response brief in which it moved to stay Defendant's motion pending the outcome of United States v. Begay, in which the Ninth Circuit is anticipated to address the constitutionality of § 924(c)(3)(B) in light of Johnson. (ECF No. 246.) On July 22, 2016, Defendant filed a reply brief in which he opposed a stay.

         On August 5, 2016, in response to the government's contention in its opposition brief that by filing his § 2255 motion, Defendant had breached the provision of his plea agreement in which he waived his right to collateral attack, Defendant filed a motion for voluntary dismissal of his petition. After the government filed a brief in which it withdrew its claim of breach, Defendant filed an unopposed motion to reinstate his § 2255 motion (ECF No. 268), which the Court granted on October 14, 2016 (ECF No. 273).

         On September 29, 2016, the Supreme Court granted certiorari in Dimaya. Dimaya, No. 15-1498, 137 S.Ct. 31 (Sept. 29, 2016). On March 29, 2017, the Ninth Circuit entered an order deferring submission of Begay pending the Supreme Court's resolution of Dimaya. See Order (Doc. No. 87), United States v. Begay, No. 14-10080 (9th Cir. Mar. 29, 2017). On June 9, 2017, this Court entered an order staying consideration of Defendant's § 2255 motion pending the outcome of Dimaya, noting that the Supreme Court was expected to issue its decision no later than June 2017, such that the ensuing stay was anticipated to be brief.

         On June 26, 2017, the Supreme Court restored Dimaya to the calendar for reargument, meaning it will not be issuing a decision until its next term, which ends in June 2018.

         On June 29, 2017, Defendant filed a motion for reconsideration of the Court's stay order in light of the development in Dimaya. On June 30, 2017, the Court issued an order in which it advised the parties it was considering vacating the stay and ruling on the merits of Defendant's § 2255 motion, and permitted the parties to file supplemental briefing by July 10, 2017.

         II. DISCUSSION

         28 U.S.C. § 2255 provides, in pertinent part, that a prisoner in custody “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 … may move the court which imposed the sentenced to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255.

         Defendant moves to vacate his conviction and sentence on Count 2 for violating § 924(c), which criminalizes possession of a firearm in furtherance of a crime of violence. For purposes of ...


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