United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S 28 U.S.C. § 2255
MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE RE: DKT.
J. DAVILA UNITED STATES DISTRICT JUDGE
the Court is Defendant Mario Cardenas' 28 U.S.C. §
2255 motion to vacate and correct his conviction and
sentence. Amended 28 U.S.C. § 2255 Motion to Vacate
(“Mot.”), Dkt. 921. On December 9, 2019, the
Government filed its response to Defendant's 2255
petition. Government's Position Regarding Re-Sentencing
(“Govt. Brief”), Dkt. 929. Defendant filed his
response to the Government's position regarding
re-sentencing on December 12, 2019. Response to
Government's Position Regarding Resentencing
(“Reply”), Dkt. 931.
February 2017, Defendant pled guilty to one count of RICO
conspiracy, in violation of 18 U.S.C. § 1962(d), and one
count of using or possessing a firearm in furtherance of a
crime of violence, in violation of 18 U.S.C.§ 924(c).
The latter charge, a “crime of violence” under 18
U.S.C. § 924(c)(3)(B) (“the residual
clause”), carried a five-year (60 month) mandatory
minimum custodial sentence to be served consecutively to any
other sentence imposed. In June, however, the United States
Supreme Court held that the residual clause is
unconstitutionally vague. United States v. Davis,
139 S.Ct. 2319, 2323-24 (2019). In light of Davis,
Defendant moves under 28 U.S.C. § 2255 for his
conviction and sentence to be vacated, set aside, and
corrected. For the foregoing reasons, Defendant's motion
March 19, 2014, the second superseding indictment charged
Defendant with four offenses: RICO conspiracy, in violation
of 18 U.S.C. § 1962(d) (Count 1); conspiracy to commit
murder in aid of racketeering, in violation of 18 U.S.C.
§ 1959(a)(5) (Count 2); conspiracy to commit assault
with a dangerous weapon in aid of racketeering, in violation
of 18 U.S.C. § 1959(a)(6) (Count 3); and use or
possession of a firearm in furtherance of a crime of
violence, in violation of 18 U.S.C. § 924(c) (Count 4).
Dkt. 149 at 2-17. Defendant pled guilty to Counts One and
Four, and the Government dropped Counts Two and Three. Dkt.
25, 2017, this Court sentenced Defendant to an aggregate of
100 months imprisonment (40 months for Count One and a
consecutive 60-month mandatory minimum sentence on Count
Four, the § 924(c) charge). Dkt. 747. Defendant is
currently incarcerated at the United States Penitentiary,
Yazoo City, with a scheduled release date of July 16, 2021.
federal sentencing court is authorized to grant relief if it
concludes that “the sentence was imposed in violation
of the Constitution or laws of the United States.” 28
U.S.C. § 2255(a). If the court finds that relief is
warranted, it must vacate and set aside the judgment and then
discharge the prisoner, resentence him, grant a new trial, or
correct the sentence as may appear appropriate. Id.
§ 2255(b). A court may retroactively apply a
constitutional rule of criminal procedure to a prisoner's
conviction and sentence if: (1) it places a class of conduct
beyond the authority of the criminal law to proscribe or (2)
it announces a watershed rule of criminal procedure. See
United States v. Brown, 2019 WL 6521942, at *2 (N.D.
Cal. Nov. 8, 2019).
24, 2019, the United States Supreme Court held that the
residual clause-the very statute under which Defendant was
convicted on Count Four-is unconstitutionally vague.
Davis, 139 S.Ct. at 2323-24. The Government does not
dispute that Davis applies retroactively or that it
requires the Court to vacate Defendant's § 924(c)
conviction, i.e., Count Four. See Govt.
Brief at 2. Accordingly, the Court GRANTS
Defendant's § 2255 motion and vacates
Defendant's § 924(c) conviction and sentence.
Government instead argues that this Court should resentence
Defendant on the remaining count of conviction, i.e.
Count One. Id. at 4. But, “the usual remedy is
to set aside the counts on which illegal convictions were
obtained and to leave untouched the valid convictions.”
United States v. Barron, 172 F.3d 1153, 1160 (9th
Cir. 1999). The court has “wide discretion” to
issue whatever remedy it deems “appropriate.”
Troiano v. United States, 918 F.3d 1082, 1086 (9th
Cir. 2019) (holding that the standard of review for a
district court's determination of the appropriate remedy
in a § 2255 is abuse of discretion). The Court agrees
with Judge Seeborg's recent opinion in United States
v. Brown, where he declined to hold a resentencing
hearing due to the “straightforward nature of
correcting [the defendant's] conviction and
sentence.” 2019 WL 6521942, at *4. Likewise, here,
there is no need to hold a resentencing hearing because the
Court can easily excise the 18 U.S.C. § 924(c)
conviction and sentence while leaving the 18 U.S.C. §
1962(d) count intact. Thus, Defendant's 18 U.S.C. §
924(c) conviction and sentence are vacated. As he has already
served more than the 40-month custodial sentence on the 18
U.S.C. § 1962(d) count,  he must be released forthwith
from the custody of the Bureau of Prisons.
foregoing reasons, Defendant's 18 U.S.C. § 924(c)
conviction and sentence are vacated. As he has already
completed his sentence for Count One, he must be released
forthwith from the custody of the Bureau of Prisons.