Moreno v. United States

— 1 — — 2 — — 3 — 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION — 7 — UNITED STATES OF AMERICA, 8 Case No. 5:11-cr-00355-EJD-17 Plaintiff, 9 ORDER GRANTING DEFENDANT'S v. SECOND § 2255 MOTION TO VACATE 10 AND CORRECT CONVICTION AND JOSE ANGEL MORENO, SENTENCE — 11 — Defendant. Re: Dkt. No. 983 — 12 — 13 Before the Court is Defendant Jose Angel Moreno’s second 28 U.S.C. § 2255 motion to 14 vacate and correct his conviction and sentence. 28 U.S.C § 2255 Second Motion to Vacate 15 (“Mot.”), Dkt. No. 983. On October 6, 2020, the Government filed its response to Defendant’s 16 motion and requested that the Court resentence Defendant. Government’s Response to 2255 and 17 Request for Plenary Re-Sentencing (“Response”), Dkt. No. 1035. Thereafter, on October 7, 2020, 18 Defendant filed his reply. Reply to Government’s Response to § 2255 Motion and Request for 19 Plenary Resentencing (“Reply”), Dkt. No. 1036. For the foregoing reasons, Defendant’s motion is 20 GRANTED. 21 I. BACKGROUND 22 On May 5, 2016, Defendant entered into a plea agreement and pled guilty to two charges: 23 racketeering conspiracy, in violation of 18 U.S.C. § 1962 (d) (Count 1) and use or possession of a 24 firearm in furtherance of a crime of violence, in violation of 18 U.S.C. §§ 924 (c)(1)(A) and 2 25 (Count 4). See Mot. On August 4, 2016 the Court sentenced Defendant to 160 months in custody. — 26 — Id. Pursuant to the sentencing order, Defendant received 100 months for Count 1 and a 60-month — 27 — Case No.: 5:11-cr-00355-EJD-17 1 mandatory consecutive sentence for Count 4. Dkt. No. 606. Defendant is currently incarcerated at 2 USP Tucson, with a scheduled release date of July 20, 2025. See Federal Bureau of Prisons 3 Inmate Locator, https://www.bop.gov/inmateloc/ (last visited Oct. 28, 2020). 4 In June 2019, the United States Supreme Court held that 18 U.S.C. § 924 (c)’s residual 5 clause (which Defendant was charged and sentenced under) is unconstitutionally vague. United 6 States v. Davis, 139 S. Ct. 2319, 2323-24 (2019). In light of Davis, Defendant moves under 28 7 U.S.C. § 2255 for his conviction and sentence to be vacated, set aside, and corrected. 8 II. LEGAL STANDARD 9 A federal sentencing court is authorized to grant relief if it concludes that “the sentence 10 was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255 (a). 11 If the court finds that relief is warranted, it must vacate and set aside the judgment and then 12 discharge the prisoner, resentence him, grant a new trial, or correct the sentence as may appear 13 appropriate. Id. § 2255(b). A court may retroactively apply a constitutional rule of criminal 14 procedure to a prisoner’s conviction and sentence if: (1) it places a class of conduct beyond the 15 authority of the criminal law to proscribe or (2) it announces a watershed rule of criminal 16 procedure. See United States v. Brown, 415 F. Supp. 3d 901 , 904 (N.D. Cal. 2019). 17 III. DISCUSSION 18 On June 24, 2019, the United States Supreme Court held that the residual clause—the very 19 statute Defendant was convicted under for Count Four—is unconstitutionally vague. Davis, 139 20 S. Ct. at 2323-24. The Government does not dispute that Davis applies retroactively or that it 21 requires the Court to vacate Defendant’s § 924(c) conviction, i.e., Count Four. See Response at 1. 22 Accordingly, the Court GRANTS Defendant’s § 2255 motion and vacates Defendant’s § 23 924(c)(1)(A) and 2 conviction and sentence. 24 The Government instead argues that this Court should resentence Defendant on the 25 remaining count of conviction, i.e. Count One. See id. But, “the usual remedy is to set aside the 26 counts on which illegal convictions were obtained and to leave untouched the valid convictions.” — 27 — Case No.: 5:11-cr-00355-EJD-17 1 United States v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999). The court has “wide discretion” to 2 issue whatever remedy it deems “appropriate.” Troiano v. United States, 918 F.3d 1082 , 1086 3 (9th Cir. 2019) (holding that the standard of review for a district court’s determination of the 4 appropriate remedy in a § 2255 is abuse of discretion); United States v. Handa, 122 F.3d 690 , 691 5 (9th Cir. 1997) (Section 2255 confers on district courts “broad and flexible power” to craft an 6 appropriate remedy). Just recently, this Court declined to hold a resentencing hearing in 7 two comparable cases. See United States v. Cardenas, 2019 WL 7020193 (N.D. Cal. Dec. 20, 8 2019); see also United States v. Cisneros, 2020 WL 4349825 (N.D. Cal. July 29, 2020). As in 9 Cardenas and Cisneros, there is no need to hold a resentencing hearing because the Court can 10 easily excise the 18 U.S.C. § 924 (c) conviction and sentence, while leaving the 18 U.S.C. 11 § 1962(d) count intact. See id. at *2; see also Brown, 415 F. Supp. 3d at 907 (declining to hold a 12 resentencing hearing due to the “straightforward nature of correcting [the defendant’s] conviction 13 and sentence”). Indeed, “[t]he government recognizes that the Court’s decision whether to 14 conduct a plenary resentencing is within the Court’s sound discretion.” Response at 1. 15 Here, the Court can easily correct Defendant’s conviction and sentence without having a 16 sentencing hearing. Defendant received 100 months for count 1 and a 60-month consecutive 17 sentence for Count 4. Defendant is currently serving his 100-month sentence. He has not yet 18 begun serving his 60-month sentence. The Court can thus excise the 60-month sentence and 19 correct Defendant’s conviction and sentence without having a resentencing hearing. See Brown, 20 415 F. Supp. 3d at 907. 21 IV. CONCLUSION 22 For the foregoing reasons, Defendant’s 18 U.S.C. § 924 (c) conviction and sentence are 23 vacated. Nothing in this Order shall be construed as affecting Defendant’s remaining 24 incarceration. — 25 — — 26 — — 27 — Case No.: 5:11-cr-00355-EJD-17 1 IT IS SO ORDERED. 2 Dated: October 29, 2020 — 3 — EDWARD J. DAVILA 4 United States District Judge — 5 — — 6 — — 7 — — 8 — — 9 — — 10 — — 11 — a 12 — 13 — — 15 — — 16 — — 17 — Zz 18 — 19 — — 20 — — 21 — — 22 — — 23 — — 24 — — 25 — — 26 — — 27 — Case No.: 5:11-cr-00355-EJD-17 28 ORDER GRANTING DEFENDANT’S SECOND § 2255 MOTION TO VACATE AND CORRECT CONVICTION AND SENTENCE