United States District Court, D. Arizona
K. JORGENSON UNITED STATES DISTRICT JUDGE.
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.
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
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
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
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.
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.
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).
Legality of 46 Month Term of Imprisonment
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.
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
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. § ...