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Gutierrez v. United States

United States District Court, D. South Dakota, Western Division

July 27, 2016

EUGENE GUTIERREZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

          LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE

         Eugene Gutierrez filed a pro se Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, claiming that his 2001 conviction on count 2 of the indictment is invalid in light of Johnson v. United States, 135 S.Ct. 2551 (2015). In his pro se Memorandum of Law, Gutierrez clearly presents the arguments in support of his motion. (Doc. 2.) The Federal Public Defender submitted a Notice of Intent Not To Supplement Pro Se Filing.[1] (Doc. 6.)

         Promptly after the filing of a § 2255 motion, the Court must undertake a preliminary review of the motion to determine whether it plainly appears from the motion, the attached exhibits and the record of prior proceedings that the movant is not entitled to relief in the district court. See Rule 4, Rules Governing § 2255 Cases. If so, the Court must dismiss the motion. Id. As discussed below, it conclusively appears from Gutierrez's filings and the record of the criminal case that he is not entitled to relief on his claims.

         BACKGROUND

         On October 22, 2001, Gutierrez pleaded guilty to one count (count 1) of armed bank robbery under 18 U.S.C. §§ 2113(a) and 2113(d), and a second count (count 2) of use of a firearm during the commission of a crime of violence under 18 U.S.C. § 924(c). In the Statement of Factual Basis signed by Gutierrez on October 16, 2001, he agreed, in part:

On December 9, 1998, in the early morning, Eugene Gutierrez entered the then, Norwest Bank of Black Hawk, South Dakota. He was accompanied by Lafayette Washington, Travon Clardy and Jimmy Prince. The four entered the bank and proceeded to forcibly rob it of United States currency.
In the course of the robbery, each of the bank occupants were physically forced to lie upon the floor and each had their hands tied together using the ties purchased at the hardware store. Washington and Prince jumped over the teller's counter and proceeded to remove United States currency from tellers' drawers and bank vaults. In the course of the robbery, Eugene Gutierrez was armed with the MAC . 10 or MAC . 11 firearm. The firearm was owned by Clardy but used that day by Gutierrez. In the course of the robbery, one or more of the above-identified four individuals forcibly took United States currency from one or more bank tellers by force. A witness-teller reports being struck in the head at least once by one of the robbers. Although Gutierrez did not directly observe such incident he does not dispute the accuracy of the witness-teller when she claims to have been struck.

(Doc. 178.) On January 7, 2002, Gutierrez was sentenced to 120 months' imprisonment on count 1 and a mandatory 7-year consecutive term of imprisonment on count 2 for brandishing a firearm during a crime of violence. See 18 U.S.C. § 924(c)(1)(A) (providing for a separate consecutive sentence of 7 years in addition to the punishment for the crime of violence if a firearm is brandished). Gutierrez did not appeal the sentence.

         On June 23, 2016, Gutierrez filed the instant motion pursuant to 28 U.S.C. § 2255(f)(3), which provides that the one-year limitation period to file motions may begin from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." Specifically, Gutierrez argues that the holding in Johnson v. United States, 135 S.Ct. 2551 (2015), recognized a new right that is retroactively applicable on collateral review, and that this right invalidates his conviction under 18 U.S.C. § 924(c) on count 2.

         DISCUSSION

         In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (ACCA) is unconstitutionally vague because it creates uncertainty about how to evaluate the risks posed by a crime and how much risk it takes to qualify as a violent felony. Johnson, 135 S.Ct. at 2557-58. The ACCA, 18 U.S.C. § 924(e), defines the term "violent felony" as any crime punishable by a term of imprisonment 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, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. 18 U.S.C. § 924(e)(2)(B). The first prong of this definition is sometimes referred to as the "elements clause, " while the second prong contains the "enumerated crimes" and, finally, what is commonly called the "residual clause" (the "ACCA residual clause"). The ACCA residual clause covers "conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(ii). The Supreme Court in Johnson made clear that its holding that the ACCA residual clause is void did not call into question the validity of the elements clause or the enumerated crimes. 135 S.Ct. at 2563.

         Post-Johnson, federal prisoners who were sentenced in reliance on the ACCA's now-void residual clause in 18 U.S.C. § 924(e) are entitled to file a § 2255 motion in the district court because Johnson announced a new rule of constitutional law made retroactively applicable to ACCA cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1264-65 (2016).

         Gutierrez, however, was not sentenced under the ACCA found in 18 U.S.C. § 924(e). Rather, as explained above, Gutierrez was convicted of the use of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c). Section 924(c) provides, in relevant part:

[A]ny person who, during and in relation to any crime of violence or drug trafficking crime... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided ...

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