Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Jimenez v. United States

United States District Court, D. North Dakota

May 10, 2017

Porfirio Ruiz Jimenez, Petitioner,
v.
United States of America, Respondent. United States of America, Plaintiff,
v.
Porfirio Ruiz Jimenez, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          Daniel L. Hovland, Chief Judge United States District Court

         The Defendant is serving a 120-month sentence for conspiracy to distribute a controlled substance. On June 20, 2016, the Defendant filed a “Motion to Vacate under 28 U.S.C. § 2255 (Johnson Claim.).See Docket No. 99. The Defendant's motion is based on the United States Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015). The Federal's Public Defender's Office filed a “Notice of Intent Not to Supplement Pro Se Filing” on July 12, 2017. See Docket No. 101. After an initial review of the motion, the Court ordered the Government to file a response. On July 20, 2016, the Government filed a response in opposition to the motion. See Docket No. 103. For the reasons set forth below, the motion is denied.

         I. BACKGROUND

         On March 4, 2015, Jimenez and a co-defendant were named in a nine-count indictment involving a conspiracy and the distribution of methamphetamine, cocaine, heroin, and marijuana. See Docket No. 1. On August 4, 2015, Jimenez pled guilty to the conspiracy count. See Docket No. 52. The other eight counts were dismissed. The offense of conviction carried a maximum penalty of life in prison and a statutory mandatory minimum of 120 months in prison. See Docket No. 48.

         The Presentence Investigation Report (“PSR”) calculated a total offense level 31, including 2 points for possession of firearm in connection with the drug conspiracy, and criminal history category I, resulting in an advisory Sentencing Guideline range of 120-135 months. See Docket No. 87, ¶ 87. The Court adopted the PSR without change and sentenced Jimenez to 120-months imprisonment on February 5, 2016. See Docket Nos. 84-87. No appeal was taken.

         On June 20, 2016, Jimenez filed a Section 2255 motion citing the recent opinion of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015), as the basis for the motion. Jimenez seeks review of his sentence, apparently contending he should not have received a 2 point enhancement for possession of a firearm in connection with the drug conspiracy.

         II. STANDARD OF REVIEW

         “28 U.S.C. § 2255 provides a federal prisoner an avenue for relief if his ‘sentence was imposed in violation of the Constitution or laws of the United States, or . . . was in excess of the maximum authorized by law.'” King v. United States, 595 F.3d 844, 852 (8th Cir. 2010) (quoting 28 U.S.C. § 2255(a)). This requires a showing of either constitutional or jurisdictional error, or a “fundamental defect” resulting in a “complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). A 28 U.S.C. § 2255 motion is not a substitute for a direct appeal and is not the proper way to complain about simple trial errors. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). A 28 U.S.C. § 2255 movant “must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). Section 2255 is “intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Davis, 417 U.S. at 343.

         In a case involving an Armed Career Criminal Act (“ACCA”) conviction based on Johnson, “the movant carries the burden of showing that the Government did not prove by a preponderance of the evidence that his conviction fell under the ACCA.” Redd v. United States, No. 4:16-CV-1665, 2017 WL 633850, at *2 (E.D. Mo. Feb. 16, 2017) (quoting Hardman v. United States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016)). The movant need not show he was sentenced under the residual clause to maintain a Section 2255 claim under Johnson. United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017) (noting sentencing judges are not required to specify under which clause of 18 U.S.C. § 924(e)(2)(B) an offense qualified as a violent felony). A movant may rely on the new rule of constitutional law announced in Johnson if his sentence may have been predicated on the now void residual clause.

         On a Section 2255 motion, the determination of whether a prior conviction qualifies as a predicate violent felony under the ACCA is subject to de novo review. Winston, 850 F.3d at 683; In re Chance, 831 F.3d 1335, 1338-39 (11th Cir. 2016). The court's review is not constrained to the law as it existed when the movant was sentenced, but should be made with the assistance of binding intervening precedent which clarifies the law. In re Chance, 831 F.3d at 1340; Winston, 850 F.3d at 683-84 (applying intervening case law); Redd, No. 4:16-CV-1665, 2017 WL 633850, at *4 n. 3. (noting decisions which clarify or apply existing law or a settled rule apply on collateral review). The burden remains on the movant to show that his sentence, in the wake of Johnson, is no longer authorized by the ACCA. In re Chance, 831 F.3d at 1341.

         III. LEGAL DISCUSSION

         In Johnson, the United States Supreme Court held the residual clause of the ACCA was vague, and the application of the residual clause violates the Constitution's guarantee of due process. Johnson, 135 S.Ct. at 2563. The ACCA defines “violent felony” as follows:

         (B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that--

(i) has as an element the use, attempted use, or threatened use of physical force against the ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.