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 Barney Anthony
Trujillo's Motion to Vacate pursuant to 28 U.S.C. §
2255 (Doc. # 28). For the following reasons, the Court grants
MR. TRUJILLO'S PREVIOUS CONVICTION
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
Id. (emphasis added). The italicized phrase is commonly
known as the residual clause.
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.”).
JOHNSON AND WELCH
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).
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.
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.
MR. TRUJILLO'S § 2255 MOTION
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.
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