Magdaleno v. United States

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 UNITED STATES OF AMERICA Case No.: 18cr458-LAB and 20cv1225-LAB 12 Plaintiff, 13 v. ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 14 JOSE MAGDALENO 15 Defendant. [17] 18 Defendant Jose Magdaleno pled guilty to possession of a firearm in 19 connection with a drug trafficking crime. All other counts, including the predicate 20 crime of possession of methamphetamine with intent to distribute, were dismissed. 21 On August 15, 2018, the Court sentenced him to 90 months’ imprisonment, 22 followed by five years’ supervised release. 23 By a motion under 28 U.S.C. § 2255 , Magdaleno now challenges his 24 conviction, arguing that United States v. Davis, 139 S. Ct. 2319 (2019) applies 25 retroactively. The Ninth Circuit has never held that Davis applies retroactively, 26 though other circuits have. See Summerise v. United States, 2020 WL 3257390 , 27 slip op. at *2 (E.D. Cal., June 16, 2020) (citing cases). The Court assumes, 28 arguendo, that it does. The Court also assumes Magdaleno filed his motion on its 1 signature date of June 23, see Houston v. Lack, 487 U.S. 266, 276 (1988), so as 2 to bring it within the one-year limitations period as to any claims arising from Davis. 3 See § 2255 (f)(3). 4 Davis does not apply here, and does not afford Magdaleno any relief. Davis 5 extended Johnson v. United States, 135 S. Ct. 2551 (2015) to hold that the residual 6 clause of 18 U.S.C. § 924 (c), which deals with crimes of violence, is 7 unconstitutionally vague. See United States v. Myers, 786 Fed. App'x 161 , 162 8 (10th Cir. 2019) (holding that Davis dealt only with the residual clause). But 9 Magdaleno pled guilty to a drug trafficking offense and was sentenced under the 10 “drug trafficking crime” clause. “The Supreme Court has never declared the 11 statutory phrase ‘drug trafficking crime’ to be unconstitutionally vague.” United 12 States v. Holt, 2020 WL 292201 , slip op. at *9 (S.D. Oh., Jan. 21, 2020). See also 13 United States v. Price, 2020 WL 516357 , slip op. at *1 (W.D. Pa., Jan. 23, 2020) 14 (“[T]he Supreme Court has never declared § 924(c)(2)’s definition of a ‘drug 15 trafficking crime’ to be unconstitutional, let alone applied such a holding 16 retroactively . . . .”) 17 Magdaleno also raises several other claims that do not arise under Davis, 18 and which are time barred. And in any event, they lack merit. He argues that only 19 a drug trafficking offense which he was convicted of can serve as a predicate 20 offense. Because he admitted committing the predicate offense (see Docket no. 21 68 at 3 (plea agreement)), this is clearly wrong. See United States v. Hunter, 887 22 F.2d 1001, 1003 (9th Cir. 1989). Citing the now-superseded Bailey v. United 23 States, 516 U.S. 137 (1995), he also argues that although he possessed the 24 firearm, he did not actually use it in connection with the drug trafficking offense. 25 But the offense he pled guilty to1 requires only possession, not use. Welsh v. [27] 1 Magdaleno committed the offense in 2017, well after the statute had been [28] 1 || United States, 136 S. Ct. 1257, 1267 (2016) (citing United States v. O’Brien, 560 2 218, 232-33 (2010)). 3 The motion and record conclusively show Magdaleno is entitled to no relief. 4 || See § 2255(b). The motion is DENIED, and a certificate of appealability is also 5 || DENIED. [6] 7 IT IS SO ORDERED. 8 ||Dated: July 8, 2020 ° Cas A Com 10 Honorable Larry Alan Burns 14 Chief United States District Judge [27] 28 |! OBrien, 560 U.S. at 232-33.