United States District Court, W.D. Louisiana, Lake Charles Division
G. JAMES, UNITED STATES DISTRICT JUDGE.
the Court is a Motion to Vacate, Set Aside, or Correct
Sentence pursuant to 28 U.S.C. § 2255 filed by the
Petitioner, Francisco Javier Camacho (“Camacho”).
[Rec. Doc. 265]. For the reasons assigned herein,
Petitioner's motion is hereby DENIED.
October 24, 2012, Camacho was charged in a Second Superseding
Indictment with, among other offenses, interference with
commerce by robbery (“Hobbs Act robbery”) in
violation of 18 U.S.C. §1951 (Count 1), and using and
carrying a firearm during and in relation to a crime of
violence, a Hobbs Act robbery, in violation of 18 U.S.C.
§ 924(c)(1)(A)(iii) (Count 2). [Rec. Doc. 151]. The
charges relate to an interstate robbery of a known drug
dealer. See Id. On November 1, 2012, Camacho entered
a plea of guilty on both counts. [Rec. Docs. 157, 182]. The
factual basis for the plea supported a finding that Camacho
brandished a weapon in violation 18 U.S.C. § 924(c).
[Rec. Docs. 278, Transcript of Sentencing Hearing; 159-2,
Stipulated Factual Basis for Guilty Plea]. On September 11,
2014, Camacho was sentenced to 70 months imprisonment for
Court 1 (Hobbs Act robbery, 18 U.S.C. §§ 1951 and
2), and 84 months imprisonment as to Count 2 (using and
carrying a firearm during a crime of violence, 18 U.S.C.
§ 924(c)(1)(A)(iii)), to be served consecutively to the
sentence on Count 1, for a total sentence of 154 months.
[Rec. Doc. 258]. During the sentencing hearing, Camacho
agreed to waive his right to file both a direct appeal and a
motion for relief pursuant to 28 U.S.C. § 2255 in
exchange for the sentence imposed. [Rec. Docs. 254, 258, 278
at pp. 104, 111]. Consistent with the agreement, Camacho did
not file a direct appeal.
24, 2016, Camacho filed a 28 U.S.C. § 2255 petition
claiming that he is entitled to relief from his conviction
and sentence pursuant to 18 U.S.C. § 924(c) because the
definition of “crime of violence” as used in the
statute is unconstitutionally vague in light of the Supreme
Court's decision in Johnson v. United States,
___ U.S. ___, 135 S.Ct. 2551 (2015). [Rec. Doc. 265]. Camacho
also raises additional arguments in support of his petition,
including: (1) ineffective assistance of counsel in
connection with the entry of his guilty plea; (2) he was
never “physically linked” to any
firearm; (3) he was subjected to segregation for
over three years without due process; (4) the imposition of
consecutive sentences results in a sentencing disparity
between himself and his co-defendant, (5) he received an
improper guideline enhancement under U.S.S.G. 3C1.1; and (6)
the court failed to consider 18 U.S.C. § 3553(a) factors
at sentencing in violation of United States v.
Booker, 543 U.S. 220, 125 S.Ct. 738 (2005) and
United States v. Peugh, 569 U.S. 530, 133 S.Ct. 2072
(2013). [Rec. Doc. 265]. Camacho also argues that the waiver
of his right to file a 2255 motion is unenforceable following
a memorandum issued by former Attorney General Holder on
October 14, 2014, instructing DOJ prosecutors to no longer
seek such waivers or enforce existing waivers in cases where
defense counsel was actually ineffective or the issue is
debatable and should be resolved by the court. See
Id. The Court notes that the government is not
attempting to enforce the waiver, and has responded to
Camacho's petition on the merits. [Rec. Doc. 279 at 8].
Court issued standard administrative orders applicable to all
cases potentially impacted by Johnson, and the
federal public defender was appointed to represent Camacho.
[Rec. Docs. 266, 267, 269]. Consistent with the Court's
standard administrative order, this matter was stayed to
allow additional time to develop the record and receive
additional guidance from the higher courts. See Id.
On May 24, 2018, the parties were provided with briefing
deadlines. [Rec. Doc. 276]. The federal public defender and
the government have completed briefing, and this matter is
now ripe for a decision. [Rec. Docs. 279, 280].
conviction and exhaustion or waiver of the right to appeal,
the court presumes that a defendant “stands fairly and
finally convicted.” United States v. Shaid,
937 F.2d 228, 231-32 (5th Cir. 1991) (quoting United
States v. Frady, 456 U.S. 152, 102 S.Ct. 1584, 1592
(1982)). Relief under section 2255 is “reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). A motion
filed under section 2255 is subject to a one-year limitations
period, running from the latest of the following dates: (1)
when the judgment became final; (2) when a government-created
impediment to filing the motion was removed; (3) when the
United States Supreme Court initially recognized and made
retroactively applicable the legal predicate for the motion;
or (4) when the petitioner could have discovered, through due
diligence, the factual predicate for the motion. See
28 U.S.C. § 2255(f). A judgment becomes final, under
this section, when the applicable period for seeking direct
review of a conviction has expired. See Clay v. United
States, 537 U.S. 522, 527, 123 S.Ct. 1072, 1076 (2003).
The limitations period is not jurisdictional and is subject
to equitable tolling. See Parrara-Martinez v. United
States, No. 15-348, 2015 WL 9244611, at *3 (W.D. Tex.
Dec. 16, 2015) (citing Holland v. Florida, 560 U.S.
631, 645, 130 S.Ct. 2549, 2560 (2010)). Equitable tolling is
only appropriate, however, in “rare and exceptional
circumstances” and “is not intended for those who
sleep on their rights.” Parrara-Martinez, 2015
WL 9244611, at *3 (quoting Cousin v. Lensing, 310
F.3d 843, 848 (5th Cir. 2002); Fisher v. Johnson,
174 F.3d 710, 715 (5th Cir. 1999)).
argues in his petition that he is entitled to relief from his
conviction pursuant to 18 U.S.C. § 924(c) because his
predicate conviction, Hobbs Act robbery, no longer satisfies
the definition of a “crime of violence” pursuant
to section 924(c)(3) after the Supreme Court's decision
in Johnson. [Rec. Doc. 265]. When a defendant is
convicted of certain crimes involving firearms, the court
applies the sentencing provisions set forth in 18 U.S.C.
§ 924. One such provision, known as the Armed Career
Criminal Act (“ACCA”), provides a sentencing
enhancement for persons convicted of unlawfully possessing a
firearm in violation of 18 U.S.C. § 922(g), and who have
at least three previous convictions “for a violent
felony or serious drug offense.” See 18 U.S.C.
§ 924(e)(1). As defined by 18 U.S.C. §
924(e)(2)(B), “the term ‘violent felony'
means any crime […] 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.” See 18
U.S.C. § 924(e)(2)(B) (emphasis added). The italicized
phrase is known as the residual clause of the ACCA. In
Johnson, made retroactively applicable in United
States v. Welch, ___ U.S. ___, 136 S.Ct. 1257 (2016),
the Supreme Court held that the residual clause (italicized
above) is unconstitutionally vague because it invites
arbitrary enforcement and fails to give fair notice of the
conduct it punishes. See Johnson, 135 S.Ct. at 2557,
2563. Thus, a conviction based on the residual clause of
section 924(e)(2)(B)(ii) violates a defendant's right to
due process. See Id. at 2563.
was convicted of violating 18 U.S.C. §§
924(c)(1)(A)(iii) for using and carrying a firearm during and
in relation to a crime of violence. [Rec. Doc. 258]. Like the
ACCA, section 924(c) defines “crime of violence”
in two different ways, each under a distinct section. Under
924(c)(3)(A), known as the elements clause, a crime of
violence “has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” See 18 U.S.C. §
924(c)(3)(A). Under 924(c)(3)(B), referred to as the residual
clause, a crime of violence is a felony “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.” See 18
U.S.C. § 924(c)(3)(B).
Camacho filed his petition, the Fifth Circuit determined that
a Hobbs Act robbery satisfies the elements clause of 18
U.S.C. § 924(c)(3)(A)'s definition of a “crime
of violence.” See United States v. Buck, 847
F.3d 267, 274-75 (5th Cir. 2017). More specifically, the
Fifth Circuit noted “the Hobbs Act's reference to
actual or threatened force or violence would appear,
self-evidently, to satisfy the standard needed for a crime of
violence under section 924(c)(3)(A).” Id.
(quoting United States v. Hill, 832 F.3d 135, 140
(2d Cir. 2016)).
the Supreme Court issued its opinion in Sessions v.
Dimaya, ___ U.S. ___, 138 S.Ct. 1204 (2018), which
invalidated a portion of the definition of “crime of
violence” under 18 U.S.C. § 16(b) of the
Immigration and Nationality Act, which contained similar
language to the residual clause of section 924(e) found to be
unconstitutional in Johnson. See Dimaya,
138 S.Ct. at 1215-16. Following this decision, the Supreme
Court remanded to the Fifth Circuit a case challenging the
validity of the “crime of violence” definition
under 18 U.S.C. § 924(c)(3). See United States v.
Davis, 677 Fed.Appx. 933 (5th Cir. 2017), vacated
and remanded, ___ U.S. ___, 138 S.Ct. 1979 (2018). On
remand the Fifth Circuit determined that the residual clause
of section 924(c)(3)(B), which contained language identical
to the residual clause of section 16(b) found to be
unconstitutional in Dimaya, was likewise
unconstitutionally vague. See United States v.
Davis, 903 F.3d 483, 485-86 (5th Cir. 2018). Based on
this finding, the Fifth Circuit reversed the petitioner's
firearm conviction for knowingly using, carrying, or
brandishing a firearm to aid and abet a conspiracy to
interfere with commerce by robbery where the “crime of
violence” determination was made under the residual
clause of section 924(c)(3)(B). See Id. In reaching
this decision the court noted that the offense of conspiracy
“does not necessarily require proof that a defendant
used, attempted, or threatened to use force, ” such
that a conviction premised on conspiracy could only be
reached under the residual clause. Id. at 485.
However, in the same decision the Fifth Circuit upheld the
defendant's conviction for a firearm charge predicated
upon the commission of a Hobbs Act robbery under the elements
clause of section 924(c)(3)(A), noting that Dimaya
did not address the elements clause, and the court's
prior decision in Buck foreclosed the
petitioner's argument to the contrary. See Id.
Just recently, the Fifth Circuit once again reiterated its
holding in Buck that a Hobbs Act robbery qualifies
as a crime of violence predicate under section
924(c)(3)(A)'s elements clause. See United States v.
Bowens, No. 17-10822, 2018 WL 5274398 (5th Cir. Oct. 24,
was convicted of using and carrying a firearm in relation to
a crime of violence under 18 U.S.C. § 924(c)(1)(A)(iii)
in relation to a Hobbs Act robbery, which the Fifth Circuit
has determined is governed by the “elements
clause” of section 924(c)(3)(A), not the residual
clause. The elements clause of section 924 has not been found
to be unconstitutional. Accordingly, Camacho cannot rely on
Johnson or Dimaya to set aside his
sentence. Because neither Johnson nor
Dimaya offer an avenue for relief, Camacho's
petition would not be considered timely under section
2255(f)(3). Section 2255 petitions are subject to the
one-year limitation of section 2255(f)(1), which began to run
in this case upon the expiration of the time for the filing
of a timely notice of appeal. See United States v.
Plascencia, 537 F.3d 385, 388 (5th Cir. 2008).
Camacho's judgment of conviction was entered on September
16, 2014. [Rec. Doc. 258]. Although Camacho waived his right
to file a direct appeal, the time for filing an appeal of ...