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United States v. Hernandez

United States District Court, W.D. Louisiana, Lafayette Division

May 8, 2018

UNITED STATES OF AMERICA
v.
MANUEL DAVID HERNANDEZ

          MAG. JUDGE CAROL B. WHITEHURST

          RULING

          TERRY A. DOUGHTY, JUDGE

         Pending before the Court is Defendant Manuel David Hernandez's (“Hernandez”) Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. Nos. 157 and 166], pursuant to the mandate issued herein by the Fifth Circuit on August 12, 2016. The motion is fully briefed, and the Court is prepared to rule.

         I. FACTS AND PROCEDURAL HISTORY

         On October 14, 1997, Hernandez was indicted on three counts of bank robbery by force and violence, in violation of 18 U.S.C. §§ 2113(a) and (d) (Counts 1, 4, and 7); three counts of using and carrying a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c) (Counts 2, 5, and 8); and three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) (Counts 3, 6, and 9). On February 5, 1998, a jury convicted Hernandez on all counts of the Indictment.

         The Pre-Sentence Investigation Report (“PSR”), released on March 4, 1998, calculated a separate “group” for each of the armed bank robberies, and for each instance of Hernandez's illegal use and carrying of a firearm during and in relation to those robberies. Considering all of those groups, the PSR recommended a total offense level of 33. However, in light of a finding the defendant qualified for sentencing as a career offender, the PSR determined a higher base offense level of 34 applied. The PSR noted that same base offense-34-was similarly applicable because the defendant qualified as an “armed career criminal” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

         With regard to his criminal history, Hernandez was assessed nine criminal history points for three adult criminal convictions: two armed robbery convictions and one conviction for 21 residential burglaries, all in violation of Illinois law.[1] Two points were added because he committed the instant offense while on parole, and an additional point was added because he committed the instant offense less than two years after his release from custody, resulting in a total of 12 criminal history points. While that score would typically correlate to a Criminal History Category V, because Hernandez was subject to the career offender provisions and armed career criminal provisions, he was automatically categorized as a Category VI offender.

         Hernandez's offense level of 34 and his Criminal History Category VI correlated to a then-mandatory guideline range of 262-327 months imprisonment on the bank robbery and felon-in-possession counts. On the three § 924(c) counts, his guideline range was the statutorily-mandated penalty: 60 months for his first conviction, and 240 months (20 years) for each of his subsequent convictions, all to be served consecutively to each other, and to the sentences imposed on the other counts.

         On August 11, 1998, Hernandez was sentenced to a total of 867 months as follows: 300 months each on two of the bank robbery convictions (concurrent with each other), and 27 months on the third bank robbery conviction (consecutive to the other bank robbery sentences), for a total sentence of 327 months on the three bank robbery counts; 180 months on each of the felon-in-possession counts (concurrent with each other, and with the sentences on two of the bank robbery counts); and 60 months on the first § 924(c) conviction and 240 months each on the other two § 924(c) convictions, with the sentences on all the § 924(c) counts to be served consecutively to each other, and to all other counts of conviction.

         On April 16, 2001, Hernandez filed his first motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255, which he later moved to supplement or amend three times. On August 30, 2002, the district court denied that § 2255 motion. Both the district court and the Fifth Circuit later denied Hernandez's request for a certificate of appealability. The district court's judgment thus became final.

         Hernandez subsequently filed with the Fifth Circuit a motion for authorization to file a second and successive motion to vacate, set aside or reduce sentence, pursuant to 28 U.S.C. § 2255, based on the United States Supreme Court's recent decisions in Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the ACCA's residual clause was unconstitutionally vague, and Welch v. United States, 136 S.Ct. 1257 (2016), which determined that Johnson is retroactively applicable to cases on collateral review. Hernandez sought authorization to challenge the district court's enhancement of his sentence under the ACCA, specifically 18 U.S.C. § 924(e)(1), based on his prior convictions under Illinois law for burglary and two robberies. He also argued that his sentence was improperly enhanced under § 924(c)(3)(B) in connection with his convictions for using a firearm during a crime of violence. Lastly, he argued that he is actually innocent of his conviction under 18 U.S.C. § 922(g) because his civil rights were restored by the State of Illinois.

         On August 12, 2016, the Fifth Circuit tentatively granted Hernandez authorization to file a successive § 2255 motion only as to a claim his sentence was unlawfully enhanced under the ACCA based on his prior Illinois convictions for robbery and burglary, stating, “Our grant of authorization is tentative in that the district court must dismiss the § 2255 motion without reaching the merits if it determines that Hernandez has failed to make the showing required by § 2255(h)(2), § 2244(b)(4); Reyes-Requena, 243 F.3d at 899.”

         II. LAW AND ANALYSIS

         Under the ACCA, a defendant who has three or more earlier convictions for a “serious drug offense” or a “violent felony” that were “committed on occasions different from one another” is subject to an enhanced penalty of 15 years to life. 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as any felony that either “has as an element the use, attempted use, or threatened use of physical force against the person of another”; or “is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to ...


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