ORDER
JAMES C. MAHAN, District Judge.
Presently before the court is petitioner Judel Espinoza-Gonzalez's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF Nos. 84, 85). The government filed a response (ECF No. 88), to which petitioner replied (ECF No. 89).
I. Facts
On July 11, 2012, petitioner pleaded guilty to counts (1) through (5) of the information (ECF No. 64): (count 1) conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951; (count 2) interference with commerce by robbery, 18 U.S.C. § 1951; (count 3) use and brandishing a firearm in relation to a crime of violence, 18 U.S.C. § 924(c); (count 4) kidnapping, 18 U.S.C. § 1201; and (count 5) conspiracy to possess more than 100 grams of heroin with intent to distribute, 21 U.S.C. § 846. (ECF No. 68).
The maximum penalty for counts (1) and (2) is not more than twenty (20) years imprisonment, a $250,000.00 fine, or both. The maximum penalty for count (3) is not less than seven (7) years imprisonment to run consecutively to any other sentence. The maximum penalty for count (4) is imprisonment for life, a $250,000.00 fine, or both. The maximum penalty for count (5) is not more than forty (40) years imprisonment—and, due to the amount of heroin involved in the conspiracy, a five (5) year mandatory minimum was applicable pursuant to 21 U.S.C. § 841(b)(1)(B). (See ECF No. 66 at 8-9).
In the plea agreement, petitioner knowingly and expressly waived, inter alia, "the right to bring any collateral challenges, including any claims under 28 U.S.C. § 2255, to his conviction, sentence and the procedure by which the court adjudicated guilt and imposed sentence, except non-waivable claims of ineffective assistance of counsel." (ECF No. 66 at 7).
On February 19, 2013, the court sentenced petitioner to 97 months on counts (1), (2), (4), and (5) to run concurrently and 84 months on count (3) to run consecutively—for a total of 181 months in custody—followed by five (5) years supervised release. (ECF No. 78). Petitioner was advised of his rights to file an appeal. (ECF No. 78). The court entered judgment on March 21, 2013. (ECF No. 80).
In the instant motion, petitioner moves to vacate the sentencing enhancement applied to his sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), and requests that the court resentence him to 97 months, the low end of the guideline range without the § 924(c) conviction. (ECF No. 85).
II. Legal Standard
Federal prisoners "may move . . . to vacate, set aside or correct [their] sentence" if the court imposed the sentence "in violation of the Constitution or laws of the United States . . . ." 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where "a fundamental defect" caused "a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).
Limitations on § 2255 motions are based on the fact that the movant "already has had a fair opportunity to present his federal claims to a federal forum," whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 "is not designed to provide criminal defendants multiple opportunities to challenge their sentence." United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).
III. Discussion
In the instant motion, petitioner asserts that he is not subject to the § 924(c) conviction because his underlying conviction (Hobbs Act robbery) does not constitute a "crime of violence." (ECF No. 85 at 10). Petitioner argues that his sentence is unconstitutional under Johnson because Johnson's holding applies equally to the residual clause in § 924(c)(3)(B). (ECF No. 85 at 7). Petitioner thus maintains that Johnson's holding renders the government unable to prove that Hobbs Act robbery constitutes a crime of violence without relying on the residual clause. (ECF No. 85 at 13). The court disagrees.
The Armed Career Criminal Act of 1984 ("ACCA") defines "violent felony" as any crime punishable by imprisonment for a term exceeding one year, 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) (emphasis added). The closing words emphasized above have come to be known as the ACCA's "residual clause." See, e.g., Johnson, 135 S. Ct. at 2555-56.
In Johnson, the United States Supreme Court held the ACCA's residual clause to be unconstitutionally vague as a statute fixing permissible sentences. 135 S. Ct. at 2557. In particular, the Supreme Court found that the ACCA's residual clause, where applicable, impermissibly fixed a higher sentence for certain defendants by requiring sentencing courts to increase a defendant's prison term from a statutory minimum of ten (10) years to a minimum of fifteen (15) years. Id.
Subsection (3) of § 924(c) defines the term "crime of violence" as an offense that is a felony and—
(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).
Johnson is inapplicable here because petitioner's sentence did not involve the ACCA's residual clause or any residual clause for that matter. That these residual clauses contain similar language does not render Johnson any more or less applicable than would otherwise be the case. Further, no statute or residual clause applied to impermissibly fix a higher sentence for petitioner. Under the applicable statutory provisions for counts (1) and (2), petitioner was subject to a maximum penalty of twenty (20) years (240 months). Specifically, pursuant to 18 U.S.C. § 1951(a), the maximum penalty for counts (1) and (2) was twenty (20) years imprisonment. For count (3), 18 U.S.C. § 924(c)(1)(A) set forth a minimum penalty of seven (7) years—i.e., 84 months—imprisonment to run consecutively to any other sentence. (See ECF No. 66 at 8-9). The court sentenced petitioner to 97 months on counts (1), (2), (4), and (5) to run concurrently and 84 months on count (3) to run consecutively. (ECF No. 78). Petitioner received a total sentence of 181 months in custody, which is under the applicable 240-month statutory maximum.
Nevertheless, petitioner asserts that to qualify as a crime of violence under § 924(c)(3)(A) (the "force clause"), Hobbs Act robbery must have an element of "physical force against the person or property of another." (ECF No. 85 at 13 (quoting 18 U.S.C. § 924(c))). Petitioner argues that Hobbs Act robbery categorically cannot fall under the force clause because the offense can be accomplished through acts that do not necessarily constitute "violent force." (ECF No. 85 at 13). Petitioner's argument is unpersuasive. Under § 924(c)(3)(A), a "crime of violence" is a felony offense that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 924(c)(3)(A). According to the plea agreement signed by petitioner, the elements of interference with commerce by robbery in violation of § 1951(a) include, inter alia, "the wrongful use of actual or threatened force, violence or fear." (ECF No. 66 at 10); see also 18 U.S.C. § 1951(a) ("by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property"). Under the elements set forth in the plea agreement, as well as the language of § 1951(a), plaintiff's underlying felony offense is a "crime of violence" under § 924(c)(3)(A).1
In light of the foregoing, petitioner has failed to show that his sentence is unconstitutional under Johnson or otherwise. Accordingly, the court will deny petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 85).
Furthermore, the court declines to issue a certificate of appealability. The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c)
(1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right.
(3) The certificate of appealability under paragraph (1) shall indicate which specific issue or issues satisfy the showing required by paragraph (2).
28 U.S.C. § 2253.
Under § 2253, the court may issue a certificate of appealability only when a movant makes a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). To make a substantial showing, the movant must establish that "reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Slack v. McDaniel, 529 U.S. 473, 484 (2000) (citation omitted).
The court finds that petitioner has not made the required substantial showing of the denial of a constitutional right to justify the issuance of a certificate of appealability. Reasonable jurists would not find the court's determination that movant is not entitled to relief under § 2255 debatable, wrong, or deserving of encouragement to proceed further. Accordingly, the court declines to issue a certificate of appealability.
IV. Conclusion
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that petitioner Judel Espinoza-Gonzalez's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (ECF Nos. 84, 85) be, and the same hereby is, DENIED.
