United States District Court, D. South Dakota, Western Division
MEMORANDUM OPINION AND ORDER OF DISMISSAL
LAWRENCE L. PIERSOL UNITED STATES DISTRICT JUDGE
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. (Doc. 6.)
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.
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.
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.
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.
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).
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 ...