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United States v. Perez

United States District Court, D. Montana, Billings Division

November 28, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ROLANDO PEREZ, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          Susan P. Watters, United States District Court Judge

         This matter comes before the Court on Defendant/Movant Perez's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. Perez seeks relief under Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), which was made retroactive to final judgments by Welch v. United States, __ U.S. __, 136 S.Ct. 1257(2016).

         I. Procedural Background

         On February 16, 2006, Perez was indicted on one count of Hobbs Act robbery, a violation of 18 U.S.C. § 1951 (Count 1); one count of using or carrying a firearm during and in relation to the crime alleged in Count 1, a violation of 18 U.S.C. § 924(c) (Count 2); and one count of being a felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1) (Count 3). See Indictment (Doc. 1) at 1-3.

         Perez agreed to plead guilty to Counts 1 and 2. The plea agreement recited the following elements:

         • Count I-Knowingly Interfere with Int. Commerce By Robbery

First, that defendant induced persons at Gold Dust Casino to part with property;
Second, that defendant did so knowingly and deliberately by robbery; and
Third, that in doing so, interstate commerce was obstructed, delayed or otherwise affected.

         • Count II-Use of Firearm During a Crime of Violence

First, the defendant committed the crime of interference with commerce by threats or violence as charged in Count I of the indictment;
Second, the defendant knowingly used a firearm; and
Third, the defendant knowingly used a firearm during and in relation to the crime.

Plea Agreement (Doc. 25) at 4-5 ¶ 8.[1]

         In exchange for Perez's guilty plea to Counts 1 and 2, the United States agreed to dismiss Count 3. Id. at 2 ¶ 5. Perez pled guilty. See Minutes (Doc. 33).

         Perez's initial sentence of 324 months was vacated on appeal. On October 18, 2007, Perez was sentenced to serve 63 months on Count 1 and 84 months on Count 2, consecutive, for a total prison term of 147 months. See Minutes (Doc. 59); Am. Judgment (Doc. 60) at 2.

         Perez did not take a second appeal. His conviction became final on November 1, 2007. See Gonzalez v. Thaler, 565 U.S. 134, 150 (2012).

         Perez now seeks relief under the United States Supreme Court's recent decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015). See also Welch v. United States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016) (holding that Johnson applies to cases already final when it was issued).

         II. Legal Background

         A. 18 U.S.C. § 924(e)

         In Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015) ("Johnson" or "Johnson IF'), the Supreme Court considered once again the meaning of a provision in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). The ACCA imposes a harsher sentence on a person convicted of a firearms offense if the person has three prior convictions for a violent felony or controlled substance offense. The Act defines a "violent felony" as a felony 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[.]

18 U.S.C. § 924(e)(2)(B). Johnson discussed only the italicized clause, commonly called the "residual" clause.

         The Supreme Court found the residual clause so vague that it deprived defendants of fair notice of the consequences of their decisions and so loose that it invited arbitrary enforcement. Therefore, the decision held, federal sentencing courts may no longer enhance a defendant's sentence based on a prior conviction when that conviction qualifies as a ...


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