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Montoya v. United States

United States District Court, D. Utah, Northern Division

November 17, 2016

DAMEON NESTOR MONTOYA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND MEMORANDUM DECISION GRANTING PETITIONER'S MOTION FOR RELIEF UNDER 28 U.S.C. § 2255

          TENA CAMPBELL, U.S. DISTRICT COURT JUDGE

         Dameon Nester Montoya was convicted of being a felon in possession of a firearm. Because he had previously committed two “crimes of violence” as defined in a now-outdated version of the United States Sentencing Guidelines (Guidelines), Mr. Montoya's sentence was enhanced. But now the law has changed. Although Mr. Montoya's previous convictions would have qualified as crimes of violence under the residual clause in the Guidelines, the Tenth Circuit has since found this clause unconstitutionally vague as a result of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Because the court finds that Johnson applies retroactively to the Guidelines, and because one of Mr. Montoya's previous convictions no longer qualifies as a crime of violence, the court GRANTS Mr. Montoya's motion.

         BACKGROUND

         Mr. Montoya pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). After his plea, the court sentenced Mr. Montoya to 57 months in prison.

         Mr. Montoya's presentence report designated two of his prior convictions as “crimes of violence” under section 4B1.2 of the Guidelines. These two prior convictions, a Utah conviction for attempted murder and a Utah conviction for assault by a prisoner, increased the recommended sentencing guideline range under the Guidelines. Specifically, Mr. Montoya's base offense level was placed at 24 as a result of these prior convictions. With his heightened base offense level, the presentence report calculated the advisory guideline range at 57 to 71 months of prison time.

         If either of Mr. Montoya's prior convictions had not been considered “crimes of violence” under the Guidelines, his base offense level would have been lower and, consequently, the sentencing guideline range would have been lower.

         Mr. Montoya recently filed a petition seeking relief under 28 U.S.C. § 2255, arguing that based on the Supreme Court's recent opinion in Johnson his prior convictions no longer qualify as “crimes of violence” under the Guidelines. Mr. Montoya argues that “his guideline range should be recalculated and he should be resentenced under the correct range.” (Mot. to Vacate, Civ. Dkt. 1.)

         ANALYSIS

         For Mr. Montoya to succeed in his motion he must establish (1) that Johnson applies retroactively to the Guidelines, allowing him to bring this challenge at this time; and (2) that at least one of his previous convictions no longer qualifies as a crime of violence under the Guidelines. The court will address each of these issues in turn.

         I. Johnson and the Guidelines

         In June of 2015, the Supreme Court ruled in Johnson v. United States, that the residual clause of the Armed Career Criminal Act (ACCA) was unconstitutionally vague. 135 S.Ct. 2551 (2015). Under the ACCA, a felon convicted of possessing a firearm is subject to a fifteen-year mandatory minimum sentence when he has three prior convictions for either a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e). Before the Court's decision in Johnson, section 924(e)(2)(B) of the ACCA defined a violent felony as follows:

Any crime punishable by imprisonment for a term exceeding one year . . . that-
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

         Section 924(e)(2)(B)(i) is referred to as the “force clause.” See United States v. Lee, 458 F. App'x 741, 745 (10th Cir. 2012) (unpublished). Burglary, arson, extortion, or crimes involving the use of explosives are known as the “enumerated offenses.” Id. And the language regarding crimes that “otherwise involve[] conduct that presents a serious potential risk of physical injury to another, ” is known as the “residual clause.” Id.

         In Johnson, the Court held that the residual clause was unconstitutionally vague. 135 S.Ct. at 2563. Less than a year later the Court held that Johnson's constitutional holding applied retroactively to cases on collateral review. Welch v. United States, 136 S.Ct. 1257 (2016).

         Like the ACCA, the Guidelines provide enhancements for crimes constituting a “crime of violence.” For example, section 2K2.1 calculates a defendant's base-offense level by looking at how many prior convictions the defendant has sustained for “either a crime of violence or a controlled substance offense.” Then, mirroring the definition provided under the ACCA, section 4B1.2 of the Guidelines defines a “crime of violence” as follows:

[A]ny offense under federal or state law, punishable by imprisonment for a term exceeding one year, that-
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

         Virtually identical to the “crime of violence” definition in ACCA, section 4B1.2 contains a force clause, an enumerated-offenses provision, and a residual clause. As a result, the Tenth Circuit Court of Appeals instructed courts to apply the Supreme Court's ACCA violent-felony analysis to interpret section 4B1.2's definition of a crime of violence. United States v. Wray, 776 F.3d 1182, 1184- 85 (10th Cir. 2015). After Johnson, the Tenth Circuit held in United States v. Madrid that section 4B1.2's residual clause is also unconstitutionally vague. 805 F.3d 1204, 1210 (10th Cir. 2015). But the Tenth Circuit did not address whether Johnson's application to the Guidelines applies retroactively to petitioners seeking collateral review. And though ...


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