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United States v. Garcia-Gonzalez

United States District Court, D. Arizona

January 4, 2017

United States of America, Respondent,
v.
Santos Alberto Garcia-Gonzalez, Defendant/Movant.

          ORDER

          CINDY K. JORGENSON UNITED STATES DISTRICT JUDGE.

         Pending before the Court is the Motion Under 28 USCS § 2255 or in the Alternative 28 USCS § 2241 (CV 15-554, Doc. 1; CR 09-073, Doc. 41) filed by Movant Santos Alberto Garcia-Gonzalez (“Garcia-Gonzalez”). A response (CV 15-554, Doc. 6) has been filed.

         I. Procedural Background

         On January 21, 2009, Garcia-Gonzalez was indicted on one count of Re-Entry After Deportation (CR 09-073, Doc. 6). On February 18, 2009, Garcia-Gonzalez pleaded guilty to the Indictment pursuant to a plea agreement (CR 09-073, Docs. 13 and 15).

         On May 5, 2009, Senior District Court Judge Frank R. Zapata sentenced Garcia-Gonzalez. District Judge Zapata adopted the advisory United States Sentence Guidelines (“USSG”) as to the illegal re-entry matter in CR 09-073, finding they were appropriate based on the information contained in the pre-sentence report (“PSR”) and the lack of objection by either counsel. During the sentencing proceeding, counsel and the Court discussed the prior convictions of Garcia-Gonzalez. Garcia-Gonzalez had received an 18 month sentence for driving a vehicle with 307 pounds of marijuana and a 21 month sentence for Possession with Intent to Distribute Less than 50 Kilograms of Marijuana (i.e., a “backpacker” case). Garcia-Gonzalez was sentenced to a term of forty-six (46) months in the custody of the Bureau of Prisons to be followed by a thirty-six (36) month term of supervised release. District Judge Zapata also sentenced Garcia-Gonzalez at that time for a supervised release violation in CR 06-2172-TUC-FRZ-JR.

         On May 22, 2003, a Petition to Revoke Supervised Release (CR 09-073, Doc. 22) was filed. The matter was reassigned to this Court. Additionally, a new case was initiated against Garcia-Gonzalez to further address the conduct alleged in the Petition to Revoke Supervised Release. See CR 13-928-TUC-CKJ-JR.

         On June 25, 2013, Garcia-Gonzalez admitted the allegations contained in the Petition to Revoke Supervised Release pursuant to an agreement with the government (CR 09-073, Docs. 28 and 30). On that same date, Garcia-Gonzalez pleaded guilty to ReEntry After Deportation pursuant to a plea agreement in the companion case (CR 13-928, Docs. 15 and 16). On September 3, 2013, Visiting District Court Judge Algenon L. Marbley sentenced Garcia-Gonzalez to a term of twelve (12) months in the custody of the Bureau of Prisons, with the sentence to run consecutive to the sentence in CR 13-928-TUC-CKJ-JR. In the companion case, Judge Marbley sentenced Garcia-Gonzalez to a term of fifty-seven (57) months in the custody of the Bureau of Prisons, to be followed by a thirty-six (36) month term of supervised release.

         On January 30, 2015, Garcia-Gonzalez filed a Motion Under 18 U.S.C. § 3582(c)(2) in both this case and the companion case (CR 09-073, Doc. 38; CR 13-928, Doc. 24)). This Court denied the motions on March 26, 2015.

         On November 30, 2015, Garcia-Gonzalez filed a Motion Under 28 USCS §2255 or in the Alternative 28 USCS § 2241 (CV 15-554, Doc. 1; CR 09-073, Doc. 41). The government filed a response on April 14, 2016 (CV 15-554, Doc. 6).

         II. Legality of 46 Month Term of Imprisonment

         Garcia-Gonzalez argues his forty-six (46) month term of imprisonment is unconstitutional pursuant to the “residual clause” of the Armed Career Criminal Act (“ACCA”). The government asserts, however, Garcia-Gonzalez was not sentenced pursuant to the Act; specifically, his sentence was not enhanced pursuant to the “residual clause” of the Act.

         The Supreme Court held in Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551 (2016), that increasing a defendant's sentence under the “residual clause” of the ACCA denies due process of law because the residual clause in the statutory definition of “violent felony” is unconstitutionally vague. 135 S.Ct. at 2557. In Welch v. United States, __U.S. __, 136 S.Ct. 1257 (2016), the Supreme Court held that its decision in Johnson regarding the vagueness of the residual clause in § 924(e)(2)(B)(ii) announced a substantive rule that applies retroactively on collateral review.

         Another district court stated:

The difficulty is that Johnson has no bearing on Defendant's case. Johnson struck down the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii) defining a “violent felony” for the purpose of the increased sentence authorized by 18 U.S.C. § 924(e)(1). The residual clause allowed for an enhanced sentence for a prior conviction that “otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. ยง ...

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