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United States v. Lopez-Galvan

United States District Court, E.D. California

September 6, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
RENE LOPEZ-GALVAN, Defendant-Petitioner.




         Before the Court is Petitioner Rene Lopez-Galvan's (“Petitioner, ” “Defendant, ” or “Lopez-Galvan”) motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 (“§ 2255”). (ECF No. 110.) Petitioner filed an application for permission to file a second or successive § 2255 motion to the Ninth Circuit, with his motion attached, on June 23, 2016. (ECF No. 110.) The Ninth Circuit granted Petitioner's application for leave to file a second or successive § 2255 motion on March 14, 2017. (ECF No. 111.) On April 17, 2017, the Government filed its opposition. (ECF No. 113.) Petitioner filed a reply on May 8, 2017. (ECF No. 114.) Having considered the parties' briefing and the record in this case, the Court DENIES Petitioner's motion under § 2255.


         Lopez-Galvan pled guilty, pursuant to a plea agreement, to five counts of Armed Bank Robbery in violation of 18 U.S.C. § 2113(a) & (d) and one count of carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1). (ECF No. 63.) On May 20, 2002, Petitioner was sentenced to 151 months on each of the robbery counts to be served concurrently, and 84 months on the § 924(c)(1) charge to run consecutive to the 151 months. (ECF No. 75.)


         A. 28 U.S.C. § 2255

         Section 2255 provides four grounds upon which a sentencing court may grant relief to a petitioning in-custody defendant:

[1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject to collateral attack.

28 U.S.C. § 2255(a). Generally, only a narrow range of claims fall within the scope of § 2255. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). The alleged error of law must be “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974).

         B. Johnson II and Welch

         Pursuant to the Armed Career Criminal Act (“ACCA”), a defendant must be sentenced to a mandatory minimum of 15 years to life in custody if he has three prior convictions for “a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as 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; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). Courts generally refer to the first clause, § 924(e)(2)(B)(i), as the “elements clause”; the first part of the disjunctive statement in (ii) as the “enumerated offenses clause”; and its second part (starting with “or otherwise”) as the “residual clause.” Johnson v. United States, 135 S.Ct. 2551, 2556-57, 2563 (2015) (“Johnson II”); United States v. Lee, 821 F.3d 1124, 1126 (9th Cir. 2016).

         In Johnson II, the Supreme Court held that “imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process, ” on the basis 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.” 135 S.Ct. at 2557, 2563. “Two features of the residual clause conspire to make it unconstitutionally vague.” Id. at 2557. First, “the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime” by “t[ying] the judicial assessment of risk to a judicially imagined ‘ordinary case' of a crime, not to real-world facts or statutory elements.” Id. Second, “[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates.” Id. at 2558.

         The Supreme Court subsequently held that its decision in Johnson II announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1268 (2016). “By striking down the residual clause for vagueness, [Johnson II] changed the substantive reach of the Armed Career Criminal Act, altering the ‘range of conduct or the class of persons that the [Act] punishes.” Id. at 1265 (quoting Schriro v. Summerlin, 542 U.S. 348, 353 (2004)). As a result, defendants sentenced pursuant to the ACCA residual ...

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