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United States v. Mosely

United States District Court, D. Colorado

February 16, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
1. ISHMAEL MOSELY, a.k.a. “Ish, ” and 2. ROMAN SANTISTEVAN, Defendants-Movants. Criminal Action No. 07-cr-00435-REB

          ORDER DENYING § 2255 MOTION TO VACATE

          Robert E. Blackburn, United States District Judge

         This matter is before me on the 28 U.S.C. § 2255 Motion To Vacate Sentence [#195][1] filed by defendant-movant Ishmael Mosely on June 20, 2016. The government filed an answer [#209], and Mr. Mosely filed a reply [#210]. In addition, the government filed a notice of supplemental authority [#211]. I deny the motion.

         On June 30, 2016, defendant-movant Roman Santistevan filed a pro se motion under § 2255 [#197, #198]. A short time later, Mr. Santistevan filed, through counsel, a Motion To Adopt and Consolidate [#202]. Mr. Santistevan sought an order permitting him to adopt the motion [#195] of Mr. Mosely as a brief in support of the motion of Mr. Santistevan. In addition, he sought an order consolidating these two § 2255 motions for purposes of briefing. The court entered an order [#204] granting the motion to adopt and consolidate. The response [#209] and reply [#210] thus address the claims of both Mr. Mosely and Mr. Santistevan. Essentially, the claims of the two defendants-movants are identical. In this order, I will refer to the motion [#195] of Mr. Mosely as the motion of the movants.

         I. STANDARD OF REVIEW

         Under 28 U.S.C. § 2255(a), a federal prisoner claiming the right to be released on the ground that his federal sentence “was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, ” may move to have his sentence vacated, set aside, or corrected.

         II. BACKGROUND

         Both Mr. Mosley and Mr. Santistevan were convicted of multiple counts of Hobbs Act Robbery, in violation of 18 U.S.C. § 1951, and of using or carrying a dangerous weapon during a crime of violence, contrary to 18 U.S.C. § 924(c). The § 924(c) conviction increased the sentence of Mr. Mosely by 10 years. The sentence of Mr. Santistevan also was increased under § 924(c) although the precise amount of that increase is not made clear in the briefing.

         Under § 924(c), any person who uses or carries a firearm during and in relation to a crime of violence, or who possesses a firearm in furtherance of such a crime, is subject to an additional prison sentence, as specified in § 924(c)(1)(A). For this provision to be applicable, at least one predicate or underlying offense must have been a “crime of violence.” Here, the predicate offenses were Hobbs Act Robbery, in violation of 18 U.S.C. § 1951. A sentence for a § 924(c) offense must be “in addition to, ” meaning consecutive to, the punishment provided for the underlying crime of violence. 18 U.S.C. § 924(c)(1)(D)(ii).

         Given developments in the law since they were sentenced, Mr. Mosely and Mr. Santistevan now claim that their convictions for Hobbs Act Robbery are not crimes of violence, as that term is defined in § 924(c)(3). Section 924(c)(3) defines the term “crime of violence” as an offense that is a felony and that -

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

18 U.S.C. § 924(c)(3). I will refer to subparagraph (A) as the Physical Force Clause and subparagraph (B) as the Risk of Force Clause. Hobbs Act Robbery is a felony.

         The movants make two arguments to support their claim that Hobbs Act Robbery is not now a crime of violence, as that term is defined in § 924(c)(3). First, they contend Hobbs Act Robbery does not fit the definition of a crime of violence as stated in the Physical Force Clause, § 924(c)(3)(A). If that is true, then Hobbs Act Robbery can be considered a crime of violence only if it fits the definition provided in the Risk of Force Clause, § 924(c)(3)(B).

         In their second argument, the movants contend the Risk of Force Clause now is invalid because it is void for vagueness. This argument is based on the ruling of the Supreme Court of the United States that a somewhat similar provision in the Armed Career Criminal Act (ACCA) is unconstitutionally vague. See Johnson v. U.S., ___ U.S. ___, ___, 135 S.Ct. 2551, 2563 (2015) (Johnson II). If Hobbs Act Robbery does not fit the definition of a crime of violence stated in § 924(c)(3)(A) and § 924(c)(3)(B) is void under Johnson II, then, the movants assert, their § 924(c) sentence enhancements must be vacated.

         In response to the present motion, the government contends the motion was not filed within the one year period of limitation provided in § 2255(f). Generally, that one year period begins to run on the date the conviction in question became final. Judgment entered on the convictions of Mr. Mosely on September 17, 2009 [#120]. He did not file a direct appeal and his time to file a direct appeal expired on about October 1, 2009. The convictions of Mr. Mosely became final on or about October 1, 2009. U.S. v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006). The convictions of Mr. Santistevan became final when the Supreme Court denied his petition for certiorari on April 18, 2011. Id. Without question, the current motion was filed more than one year after the convictions and sentences of the movants became final.

         Mr. Mosely and Mr. Santistevan claim they are entitled to the benefit of the extended period of limitation provided in § 2255(f)(3). Under that subsection, a § 2255 motion may be filed within one year of

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 ...

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