United States District Court, D. Montana, Billings Division
ORDER DENYING § 2255 MOTION AND DENYING
CERTIFICATE OF APPEALABILITY
P. Watters, United States District Court Judge
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).
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)
agreed to plead guilty to Counts 1 and 2. The plea agreement
recited the following elements:
Count I-Knowingly Interfere with Int. Commerce By
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
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
Third, the defendant knowingly used a
firearm during and in relation to the crime.
Plea Agreement (Doc. 25) at 4-5 ¶ 8.
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).
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.
did not take a second appeal. His conviction became final on
November 1, 2007. See Gonzalez v. Thaler, 565 U.S.
134, 150 (2012).
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).
18 U.S.C. § 924(e)
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
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