United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
Waddoups United States District Judge.
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.
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.
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).
SUPREME COURT PRECEDENT
Johnson is inapplicable
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.
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.
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)).
because Johnson pertained to § 924(e)(2)(B),
and Mr. Reyes was sentenced under § 924(c),
Johnson is not applicable to this case.
Residual Clause of the Sentencing Guidelines
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