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Villanueva v. United States

United States District Court, D. Connecticut

June 10, 2016

RICHARD VILLANUEVA, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING RE: PETITIONER’S SUCCESSIVE MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE (DOC. NO. 1)

          Janet C. Hall United States District Judge

         I. INTRODUCTION

         Richard Villanueva (“Villanueva”) moves to vacate, set aside, or correct his sentence under section 2255 of title 28 of the United States Code (“section 2255”). Motion to Vacate, Set Aside or Correct Sentence (“Motion”) (Doc. No. 1). Villanueva claims that his sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is invalid in light of Johnson v. United States, 135 S.Ct. 2552 (2015). Motion at 1. The United States opposes the Motion on the ground that Villanueva’s prior convictions qualify as ACCA predicates notwithstanding Johnson. Gov’t’s Resp. to Villanueva’s Pet. (“Opposition”) (Doc. No. 5) at 1.

         For the reasons set forth below, the Motion is GRANTED, the sentence VACATED, and the case will be set down for resentencing.

         II. BACKGROUND

         On June 3, 1999, a Bridgeport grand jury returned an indictment charging Villanueva with one count of being a felon in possession of a firearm, in violation of section 924(g)(1) of title 18 of the United States Code. Indictment (Crim. Case No. 99-CR-112 (Doc. No. 1)). The Indictment further alleged four prior felony convictions: the first for the sale of narcotics on January 27, 1988, in violation of section 21a-277(a) of the Connecticut General Statutes; the second for possession of narcotics with intent to sell on May 29, 1990, in violation of section 21a-279(a) of the Connecticut General Statutes;[1] the third for assault in the first degree on May 29, 1990, in violation of section 53a-59(a); and the fourth for assault on an officer on November 10, 1992, in violation of section 53a-167(c). Id. On November 10, 1999, a jury convicted Villanueva of being a felon in possession of a firearm.

         On February 1, 2000, this court held a sentencing hearing. At that hearing, the court concluded that the two prior drug convictions qualified as “serious drug offenses” within the meaning of ACCA, see Sent’g Trans. (“Transcript”) (Crim. Case No. 99-CR-112 (Doc. No. 57)) 12:2-13:11, and, without discussion, concluded that at least one of the two assault convictions constituted “violent felonies” within the meaning of ACCA. The parties stipulated to the fact that Villanueva was ACCA eligible, and the court did not state on the record under which provision of ACCA the assaults constituted “violent felonies.” See generally id.

         On October 2, 2000, the Second Circuit affirmed Villanueva’s conviction and sentence. Mandate (Crim. Case No. 99-CR-112 (Doc. No. 60)). On December 31, 2000, Villanueva’s time to file for a petition for a writ of certiorari expired, Sup. Ct. R. 13, and his conviction thus became final for purposes of collateral review under section 2255 of title 28 of the United States Code. Clay v. United States, 537 U.S. 522, 525 (2003).

         On July 29, 2003, this court denied Villanueva’s first Motion under section 2255. Ruling (Crim. Case No. 99-CR-112 (Doc. No. 80)). The Second Circuit affirmed the denial of his first Motion on July 19, 2005. Mandate (Crim. Case No. 99-CR-112 (Doc. No. 101)).

         On February 16, 2016, the Second Circuit granted Villanueva’s Motion for Leave to File a Successive Section 2255 Motion. See Mandate (Crim. Case No. 99-CR-112 (Doc. No. 119)). In its Mandate, the Circuit directed this court “to address, as a preliminary inquiry under [28 U.S.C.] § 2244(b)(4), whether the Supreme Court’s decision in Johnson[ v. United States, 135 S.Ct. 2551 (2015)] announced a new rule of constitutional law made retroactive to cases on collateral review, and thus permits [Villanueva]’s new § 2255 claim to proceed.” Id. at 2. The court further directed this court to “determine whether the assault convictions remain proper ACCA predicates after Johnson, and what evidence may be considered in making that determination.” Id.

         Villanueva filed the instant Motion on February 23, 2016. On April 18, 2016, the Supreme Court ruled that Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         III. LEGAL STANDARD

         Section 2255 of title 28 of the United States Code provides, in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the 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 the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). As a general matter, “collateral attack on a final judgment in a criminal case is generally available under [section] 2255 only for a constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in [a] complete miscarriage of justice.” Graziano v. United States, 83 F.3d 587, 589-90 (2d Cir. 1996) (citation and internal quotation marks omitted).

         The movant carries the burden of proving, by a preponderance of the evidence, that he is entitled to relief under section 2255. See, e.g., Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000).

         IV. DISCUSSION

         The crux of Villanueva’s claim is that he was sentenced under ACCA pursuant to the Residual Clause. See Motion at 2. Because, as will be discussed below, the Residual Clause was illegal at the time he was sentenced, see Welch v. United States, 136 S.Ct. 1257, 1268 (2016) (holding that Johnson v. United States, 135 S.Ct. 2551, 2557 (2015), applies retroactively to cases on collateral review), Villanueva claims that his sentence was imposed in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution, Motion at 2, and that he is thus entitled to relief expressly under section 2255.

         In response, the United States in effect has raised a harmless error defense, Opposition at 7 (citing Brecht v. Abrahamson, 507 U.S. 619 (1993) and Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht’s harmless error standard to motions under section 2255)). It argues that, under the law at the time he was sentenced, Villanueva’s convictions were violent felonies under the Elements Clause. Opposition at 10-13. Consequently, the United States claims, any error committed by sentencing him under the Residual Clause-assuming such error can be found-is harmless.[2]

         Consequently, the first task before the court is to determine whether Villanueva has proven by a preponderance of the evidence that he was sentenced under the Residual Clause. Triana, 205 F.3d at 40. If he was so sentenced, his “sentence was in excess of the maximum authorized by law, ” 28 U.S.C. § 2255(a); see also, e.g., Lee v. United States, No. 3:16-cv-6009-MAT, 2016 WL 1464118, at *3 (W.D.N.Y. Apr. 12, 2016). The court’s second task is to determine, should an error have occurred, whether that error was amenable to harmless error review, and, to the extent that it is, whether there is “grave doubt” as to whether the error “ha[d] a substantial effect or influence on determining” Villanueva’s sentence. O’Neal v. McAninch, 513 U.S. 432, 435 (1995); see also Brecht, 507 U.S. at 637, and Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1995). If the court harbors “grave doubt, ” “the petitioner must win.” O’Neal, 513 U.S. at 436.

         Thus, if the court determines that there was error, and that the error was not harmless, Villaneuva is entitled to relief, his sentence must be vacated, and the case must be set down for resentencing.

         As to the first question, the court concludes, in light of the record of Villanueva’s sentencing, that it is more likely than not that he was sentenced under ACCA’s Residual Clause. The court considers, among other facts, the absence of any discussion in court concerning under which of the ACCA subsections Villanueva’s assault convictions qualified, as strong circumstantial evidence that the court used the most obvious path to the conclusion that the crimes were ACCA eligible-the broad-sweeping Residual Clause. Specifically, the Residual Clause’s plain language would readily have encompassed a crime such as first degree assault with a minimum of statutory analysis, insofar as first degree assault, which has “physical injury” as an element, necessarily “involves conduct that presents a serious potential risk of physical injury to another, ” 18 U.S.C. § 924(e)(2)(B)(ii). Consequently, Villanueva’s Due Process rights were violated when he was sentenced as an Armed Career Criminal in 2000.

         With respect to the second question, harmless error, the court first observes that the constitutional infirmity at issue in this case should not be amenable to harmless error review. The court then concludes, on the assumption that harmless error review does apply to a Johnson violation, that the error was not harmless because neither statute under which Villanueva was previously convicted for assault qualified as a violent felony under ACCA. The court reaches this conclusion because neither statute has “as an element the use, attempted use, or threatened use of physical force against the person of another, ” 18 U.S.C. § 924(e)(2)(B)(i), or, to the extent that they do, because the United States has not proven by competent evidence that he was convicted under a subsection of the statutes that do have such an element.

         This Ruling proceeds in the following manner. Subsection (A) explains ACCA’s structure, the effect Johnson and Welch have had on ACCA, and the court’s bases for concluding that Villanueva was sentenced under the Residual Clause. The subsection that follows explains the court’s conclusion that Villanueva was sentenced unconstitutionally. Subsection (C) explains that the error was not harmless because Villanueva’s convictions under Connecticut General Statutes 53a-59(a)(1) and 53a-167c did not qualify as violent felonies under any subsection of ACCA that was valid at the time of his sentencing.[3]

         A. ACCA and the Categorical Approach

         Section 924(e) of title 18 of the United States Code requires a sentencing court to impose a mandatory minimum sentence of fifteen years’ incarceration upon a defendant convicted of being a felon in possession of a firearm who had sustained “three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). The statute further provides that:

[T]he term “violent felony” means 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 the 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)(i)-(ii). Subsection (i) is commonly referred to as the “Elements Clause;” the first half of subsection (ii) as the “Enumerated Felonies Clause;” and the second half of subsection (ii), beginning with “or otherwise involves, ” as the “Residual Clause.” Id. At the time Villanueva’s conviction became final, as is true today, “the Government bears the burden of establishing (by a preponderance of the evidence), the existence of prior violent felony convictions when seeking a sentence enhancement pursuant to [ACCA].” United States v. Rosa, 507 F.3d 142, 151 (2d Cir. 2007) (quoting United States v. Brown, 52 F.3d 415, 425 (2d Cir. 1995)). Notably, the fact of a prior conviction is the only form of evidence that raises a statutory maximum penalty that need not be found by a jury, and may instead by found by a judge. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proven beyond a reasonable doubt.”).

         A finding that a defendant qualifies for the ACCA enhancement also affects his sentencing calculation under the United States Sentencing Guidelines. Under the Guidelines in effect when Villanueva was sentenced, and under the Guidelines in effect today, the ACCA guideline was found at section 4B1.4. It raises the Base Offense Level for being a felon in possession of a firearm from as low as 20 to as high as 34. Compare U.S.S.G. § 2K2.1 (providing Base Offense Levels for firearms offenses) with U.S.S.G. § 4B1.4 (providing Base Offense Levels for ACCA status offenders).

         When Villaneuva was sentenced, as is also true today, courts were required to engage in “the categorical approach” announced in Taylor v. United States, 495 U.S. 575 (1990), to determine whether a defendant is eligible for an ACCA enhancement. This approach has, since Taylor, required the court to determine only whether the “statutory definitions-i.e., the elements-of a defendant’s prior offenses, and not . . . the particular facts underlying those convictions, ” meet the definition of “violent felony” under ACCA. Descamps v. United States, 133 S.Ct. 2276, 2283 (2013) (internal quotation marks and citations omitted). The purpose of this approach is well-established: by requiring sentencing courts to determine only whether a prior conviction categorically constitutes a ...


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