United States District Court, D. Colorado
ORDER GRANTING DEFENDANT'S MOTION TO
CHRISTINE M. ARGUELLO United States District Judge.
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.
MR. MARTINEZ'S PREVIOUS CONVICTION
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.)
§ 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
§ 4B1.2 (a) (emphasis added). The highlighted portion of
this section is known as the residual clause.
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.”).
JOHNSON AND WELCH
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
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).
Johnson Court held that the residual clause is
unconstitutionally vague because the application of it
“denies fair notice to defendants and invites arbitrary
enforcement by judges. Increasing a defendant's sentence