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Rios v. United States

United States District Court, N.D. Indiana, South Bend Division

October 6, 2016

BRYANT RASHAD RIOS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          ROBERT L. MILLER, JR. JUDGE UNITED STATES DISTRICT COURT

         Petitioner Bryant Rashad Rios pleaded guilty to possessing a firearm as a convicted felon, 18 U.S.C. § 922(g), and was sentenced on the basis of having previously committed a felony crime of violence, U.S.S.G. § 2K2.1(a)(4). This matter is before the court on Mr. Rios's motion to correct his sentence under 28 U.S.C. § 2255. For the reasons that follow, the court denies Mr. Rios's motion.

         I. Background

         Mr. Rios admitted to possessing a HiPoint, model JCP40, .40 caliber pistol and firing it in South Bend, Indiana. He dumped the gun in a trash can while it was still loaded with a round in the chamber. Police later uncovered the magazine loaded with several rounds of ammunition. Mr. Rios pleaded guilty to possessing a firearm as a convicted felon. 18 U.S.C. § 922(g). He has a prior felony conviction for criminal recklessness. Ind. Code § 35-42-2-2 (“A person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness.”).

         The possession charge carries a maximum prison sentence of ten years. § 922(g). When the court found that his prior felony conviction was a “crime of violence” as defined in § 4B1.2(a) of the Federal Sentencing Guidelines, Mr. Rios was moved from a base offense level of 14 to 20. U.S.S.G. § 2K2.1(a)(4), (6). Mr. Rios didn't object to the classification of criminal recklessness as a “crime of violence.” The government recommended a three-level reduction for acceptance of responsibility. U.S.S.G. § 3E1.1. The recommended sentence range without the enhancement was 37 to 46 months and, with the enhancement, 70 to 87 months. This court sentenced Mr. Rios to 78 months in prison followed by two years of supervised release.

         As part of his plea agreement, Mr. Rios agreed to the following waiver:

I understand that the offense to which I am pleading guilty falls under the Sentencing Guidelines promulgated by the United States Sentencing Commission under Title 28, United States Code, Section 994. I am aware that my sentence will be determined in accordance with the statutory maximums listed above, the United States Sentencing Guidelines, and this plea agreement. I agree that the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for my offense(s) as set forth in this plea agreement. With that understanding, I expressly waive my right to appeal my conviction, my sentence and restitution order to any Court on any ground, including any claim of ineffective assistance of counsel. I also agree not to contest my conviction, my sentence, any restitution order imposed, or the manner in which my conviction, the sentence or the restitution order was determined or imposed on any ground, including any alleged ineffective assistance of counsel in any appeal under Title 18, United States Code, Section 3742 or in any post-conviction proceeding, including but not limited to, a proceeding under Title 28, United States Code, Section 2255;

         Pet. to Enter a Guilty Plea, ¶ 9(d) [12].

         On June 26, 2015, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson concerned the Armed Career Criminal Act, which imposes a fifteen-year mandatory minimum sentence for a defendant who committed three prior “violent felonies.” The statute 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 [known as the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [known as the “enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the “residual clause”];

18 U.S.C. § 924(e)(2)(B) (emphasis added). Johnson held that the residual clause is unconstitutionally vague under the Due Process Clause, U.S. Const. amend. V. Johnson announced a substantive rule retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016).

         The definition of “crime of violence” in § 4B1.2(a) of the Guidelines is identical to the definition of “violent felony” in the ACCA. Mr. Rios argues that criminal recklessness doesn't fall within the first two clauses of Guidelines § 4B1.2(a), and so the only ...


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