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Sotelo v. United States

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

October 14, 2016

GEORGE ROBERT SOTELO, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          Robert L. Miller, Jr. Judge United States District Court

         George Sotelo was convicted of six counts of mailing threatening communications, 18 U.S.C. § 876(b), (c). This matter is before the court on Mr. Sotelo's motion to vacate his sentence under 28 U.S.C. § 2255. For the reasons that follow, the court denies Mr. Sotelo's motion.

         I. Background

         A jury found Mr. Sotelo guilty of six counts of mailing a threatening communication. 18 U.S.C. § 876(b), (c). On three separate dates he mailed to Carolyn Barlow a communication containing a threat to injure Ms. Barlow and others, in violation of § 876(c), and did so with intent to extort money from her, in violation of § 876(b). He was sentenced to 240 months imprisonment for the three extortion-based violations and 22 months for the three general threat violations, to be served consecutively. Mr. Sotelo's sentence was enhanced for committing a “crime of violence” while having at least two prior felony convictions for either a “crime of violence” or a “controlled substance offense, ” U.S.S.G. § 4B1.1(a), and the final sentence fell within the recommended range of 210 to 262 months. The prior felony convictions aren't at issue. The issue is whether, after the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015), a violation of § 876(b) or (c) is a “crime of violence” as defined under § 4B1.2. If not, Mr. Sotelo might be entitled to resentencing.

         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 [the “elements clause”]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the “enumerated offenses clause”], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the “residual clause”];

18 U.S.C. § 924(e)(2)(B). 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).

         Mr. Sotelo wasn't sentenced according to the definition of “violent felony” in the ACCA, but under identical language in § 4B1.2 of the Guidelines defining the term “crime of violence.” Mr. Sotelo argues that a § 876 violation isn't a “crime of violence” as defined under § 4B1.2 for three reasons: first, § 876 isn't a “crime of violence” under the elements clause, § 4B1.2(a)(1); second, § 876 isn't a “crime of violence” under the enumerated offenses clause, § 4B1.2(a)(2); and third, § 876 isn't a “crime of violence” under the residual clause, § 4B1.2(a)(2), because the residual clause is unconstitutional under Johnson.[1] As a result, he shouldn't have been subject to § 4B1.1(a)'s career offender enhancement. Mr. Sotelo filed a petition under 28 U.S.C. § 2255 asking that his sentence be vacated and he be resentenced without the career offender enhancement.

         II. Standard of Review

         A person convicted of a federal crime can challenge his sentence on grounds that the sentence violates the Constitution or laws of the United States, the court had no jurisdiction to impose such sentence, the sentence exceeded the maximum authorized by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Issues not argued and decided on direct appeal generally can't be raised in a § 2255 petition unless the petitioner can show good cause and actual prejudice for the procedural default. Galbraith v. United States, 313 F.3d 1001, 1006 (7th Cir. 2002). Mr. Sotelo filed his motion to correct his sentence within one year of when “the right asserted was initially recognized by the Supreme Court” in United States v. Johnson, 135 S.Ct. 2551 (2015) and “made retroactively applicable to cases on collateral review” in Welch v. United States, 136 S.Ct. 1257 (2016). 28 U.S.C. § 2255(f)(3).

         An evidentiary hearing isn't required if “the motion and files and records of the case conclusively show that the petitioner is entitled to no relief.” 28 U.S.C. § 2255. After reviewing Mr. Sotelo's petition and the record of this case, the court concludes that the factual and legal issues raised can be resolved on the record, so no hearing is necessary. See Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir. 2000) ...


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