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United States v. Martinez

United States District Court, D. Colorado

November 30, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDREW MICHAEL MARTINEZ, a/k/a “Young Blood, ” Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO VACATE

          CHRISTINE M. ARGUELLO United States District Judge.

         This matter comes before the Court on Defendant Andrew Michael Martinez's Motion to Vacate (Doc. # 29) pursuant to 28 U.S.C. § 2255. For the following reasons, the Court grants the motion.

         I. BACKGROUND

         A. MR. MARTINEZ'S PREVIOUS CONVICTION

         On October 4, 2010, Mr. Martinez entered a plea of guilty to one count of violating 18 U.S.C. § 922(g)(1) for illegal possession of a firearm by a previously-convicted felon. (Doc. # 26.) On October 5, 2010, the Court sentenced him to 120-months imprisonment. (Doc. # 27.) Before imposing this sentence, the Court adopted the findings and recommendations of the Presentence Investigation Report, which stated that Mr. Martinez should be subjected to an increased sentence under § 2K2.1(a)(2) of the United States Sentencing Guidelines (Guidelines) (Doc. # 21 at 5, ¶ 15.)

         Under § 2K2.1(a)(2), a defendant convicted under 18 U.S.C. § 922(g) is assigned an offense level of 24 “if the defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance offense.” The commentary to § 2K2.1 directs the Court to consult the career-offender guideline, § 4B1.2, for the definition of “crime of violence.” That section defines “crime of violence” as:

(a) any 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.

§ 4B1.2 (a) (emphasis added).[1] The highlighted portion of this section is known as the residual clause.

         The Court found that Mr. Martinez had two prior convictions that qualified as “crimes of violence” under § 4B1.2(a)-vehicular eluding and conspiracy to commit vehicular eluding. Mr. Martinez did not directly appeal that sentence, and it became final on or about October 20, 2010. See Fed. R. App. P. 4(b)(1)(A)(i) (defendant must file a notice of appeal within fourteen days of judgment); United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006) (“If the defendant does not file an appeal, the criminal conviction becomes final upon the expiration of the time in which to take a direct criminal appeal.”).

         B. JOHNSON AND WELCH

         Approximately five years later, on June 26, 2015, the Supreme Court decided Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015). Johnson examined the Armed Career Criminal Act (ACCA), which mandates a 15-year minimum sentence for anyone convicted of felon-in-possession who “has three previous convictions . . . for a violent felony.” 18 U.S.C. § 924(e)(1). Specifically at issue in Johnson was the constitutionality of the residual clause (italicized below) contained in the ACCA's definition of “violent felony”-a clause that is identical to the residual clause in § 4B1.2(a)(2) of the Guidelines:

any crime punishable by imprisonment for a term exceeding one year . . . if committed by an adult, 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.

§ 924(e)(2)(B) (emphasis added).

         The Johnson Court held that the residual clause is unconstitutionally vague because the application of it ‚Äúdenies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence ...


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