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United States v. Trujillo

United States District Court, D. Colorado

December 1, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
BARNEY ANTHONY TRUJILLO, Defendant.

          ORDER GRANTING DEFENDANT'S MOTION TO VACATE

          CHRISTINE M. ARGUELLO United States District Judge.

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

         I. BACKGROUND

         A. MR. TRUJILLO'S PREVIOUS CONVICTION

         On July 7, 2009, Mr. Trujillo pled guilty to one count of bank robbery in violation of 18 U.S.C. § 2113(a). (Doc. ## 23, 24.) Before sentencing, the U.S. Probation Office filed a Presentence Investigation Report (PSR) recommending that Mr. Trujillo be sentenced as a career offender pursuant to § 4B1.1(a) of the United States Sentencing Guidelines (Guidelines), which applies when “the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” Section 4B1.2(a) defines a 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.

Id. (emphasis added).[1] The italicized phrase is commonly known as the residual clause.

         The PSR stated that Mr. Trujillo had at least two prior aggravated robbery convictions in Colorado that qualified as crimes of violence under § 4B1.2(a). These convictions increased Mr. Trujillo's total offense level from a level 21, with an advisory imprisonment range of 77 and 96 months, to a level 29, with an advisory imprisonment range of 151 to 188 months. The Court adopted the findings of fact and the guideline recommendations in the PSR, but the Court then departed from the Guideline range to impose a downward variance pursuant to 18 U.S.C. § 3553, resulting in a 120-month sentence. (Doc. ## 24, 26.) Mr. Trujillo did not directly appeal that sentence, and it became final on or about October 29, 2009. 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 six 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 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 italicized phrase in clause (ii) is the “residual clause, ” and clause (i) is known as the “elements” or “force” clause. The Johnson Court held that the residual clause was unconstitutionally vague because the application of it “denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.” Id. at 2557.

         On April 18, 2016, the Supreme Court decided Welch v. United States, ___ U.S. ___, 136 S.Ct. 1257 (2016). Welch held that Johnson announced a “substantive” change in the criminal law that applies retroactively to prisoners who received the ACCA mandatory minimum sentence based on an offense that was deemed a “violent felony” under the residual clause. Id. at 1265. Thus, via 28 U.S.C. § 2255, those prisoners could collaterally challenge their sentences as unconstitutional.

         C. MR. TRUJILLO'S § 2255 MOTION

         On June 13, 2016, Mr. Trujillo filed the instant motion, arguing that his sentence enhancement under § 4B1.2(a) of the Guidelines is unconstitutional in light of Johnson. Mr. Trujillo contends that his previous convictions for aggravated robbery can only constitute crimes of violence under the residual clause of § 4B1.2(a)(2), which is identical to the unconstitutional residual clause of the ACCA. He asks that his sentence therefore be vacated and a resentencing hearing be held.

         On August 25, 2016, the Government responded to the motion, contending that it was untimely filed and procedurally barred. The Government also contends that Mr. Trujillo's previous convictions for aggravated robbery constitute crimes of violence under the force clause of § 4B1.2(a)(1), not the residual clause of § 4B1.2(a)(2). Therefore, his previous convictions remain crimes of violence regardless of Johnson and his sentence should remain as originally imposed.

         II. ANALYSIS

         A. ...


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