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Reyes v. United States

United States District Court, D. Utah

October 17, 2019



          Clark Waddoups United States District Judge.

         On June 27, 2016, Plaintiff Pedro Altamirano Reyes filed a motion to appoint counsel so he could pursue a claim based on Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Mr. Reyes asserts his sentence is unconstitutional because he was sentenced under the Armed Career Criminal Act (“ACCA” or the “Act”), and the residual clause of that Act has been declared unconstitutionally vague. Motion, at 1 (ECF No. 1). He also challenges his sentence due to “the career offender guidelines” because they are almost identical to the ACCA. Id. at 2. He asked for counsel to be appointed due to limitations he faced in representing himself while imprisoned. Because of the nature of Mr. Reyes' requested relief, the court has treated his motion as a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255.


         On January 5, 2018, the court issued a Memorandum Decision and Order denying Mr. Reyes' request for appointment of counsel (ECF No. 4). In that ruling, the court stated this was Mr. Reyes' second or successive § 2255 motion. Upon further review of the record in Mr. Reyes' criminal case, the court concludes Mr. Reyes filed a Motion to Reduce Sentence under 18 U.S.C. § 3582(c)(2) based on a modification to the sentencing guidelines. See Mot. to Reduce Sentence (ECF No. 62 in No. 1:13-cr-18). Because that motion was filed properly under § 3582(c)(2), it was not a § 2255 motion. Therefore, Mr. Reyes' present motion is his first § 2255 motion, and the court has jurisdiction to address it.

         With respect to the timeliness of his motion, the United States Supreme Court decided Johnson on June 26, 2015. Although that case determined the residual clause of the ACCA was void for vagueness, it did not address whether its ruling was a substantive decision that should be applied “retroactive[ly] in cases on collateral review.” Welch v. United States, U.S., 136 S.Ct. 1257, 1261, 194 L.Ed.2d 387 (2016). Not until April 18, 2016, did the Court answer that question in the affirmative. See id. at 1268. Mr. Reyes filed his § 2255 motion on June 27, 2016. The court concludes such filing was timely under 28 U.S.C. § 2255(f)(3).


         A. Johnson is inapplicable

         Previously in this case, the court reviewed the presentence report and judgment and held that Mr. Reyes was not sentenced under the residual clause of the ACCA. Mem. Dec., at 1-2 (ECF No. 4). Instead, he was sentenced based on an 11(c)(1)(C) agreement. Id. at 2.

         In United States v. Pam, the Tenth Circuit addressed whether a sentence may have been based on the ACCA even though it was pursuant to an 11(c)(1)(C) agreement. Pam, 867 F.3d 1191, 1197 (10th Cir. 2017). The plea agreement referred to the ACCA and the parties agreed to recommend that the sentence be varied upward because of the Act. Id. at 1196. The court sentenced the defendant pursuant to that agreement. Id. The Tenth Circuit concluded even though the sentence was imposed pursuant to an 11(c)(1)(C) agreement, because the agreement took the ACCA into account, the sentence was done, in part, due to the Act. Id. at 1199-1200.

         Here, Mr. Reyes' guideline range for sentencing was 188 to 235 months. Mem. Dec., at 1-2 (ECF No. 4). Pursuant to an 11(c)(1)(C) agreement, the court varied from that “range and imposed a sentence of 152 months.” Id. at 2. Hence, Mr. Reyes was sentenced pursuant to an 11(c)(1)(C) agreement. The court notes, however, that the judgment imposed 92-months imprisonment for “Possession of Methamphetamine with Intent to Distribute” and 60-months imprisonment for “Possession of a Firearm in Furtherance of a Drug Trafficking” in violation of 18 U.S.C. § 924(c). Judgment, at 1-2 (ECF No. 59 in No. 1:13-cr-18). Although the court varied the sentence down based on an 11(c)(1)(C) agreement, similar to the analogous ruling in Pam, the court concludes Mr. Reyes' sentence was based, in part, on § 924(c). See id.; see also Sentencing Hearing Tr., at 4, 6 (ECF No. 2 in No. 1:16-cv-97) (concluding 152-month sentence was appropriate in this case but stating 60-months of that sentence was pursuant to § 924(c)).

         Nevertheless, because Johnson pertained to § 924(e)(2)(B), and Mr. Reyes was sentenced under § 924(c), Johnson is not applicable to this case.

         B. Residual Clause of the Sentencing Guidelines

         Mr. Reyes “also challenges his sentence based on” the career offender guidelines. Motion, at 2 (ECF No. 1). As stated above, this case involves an 11(c)(1)(C) agreement and the court adopted the recommended sentence. Even if Mr. Reyes' sentence were based on the Sentencing Guidelines, however, the United States Supreme Court has distinguished the guidelines from the holding in Johnson and has held they “are not subject to vagueness challenges under the Due Process Clause.” Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886, 890, 197 L.Ed.2d 145 (2017). The court therefore denies Mr. Reyes relief on this ground.

         C. Davis ...

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