United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
DEGUILIO Judge United States District Court
Ruben Trevino was convicted on two counts arising out of his
participation in a drug trafficking operation, and he
received a sentence of 90 months of imprisonment (which has
since been reduced to 84 months). The first count, which was
Count 2 of the indictment, was for possessing marijuana with
the intent to distribute it, in violation of 21 U.S.C. §
841(a)(1). The second count, Count 5 of the indictment, was
for possessing a firearm in furtherance of that drug
trafficking crime, in violation of 18 U.S.C. § 924(c),
or for aiding and abetting that offense, 18 U.S.C. § 2.
Mr. Trevino pled guilty to both counts pursuant to a plea
agreement. Judgment was entered on those convictions on
October 10, 2013, and Mr. Trevino did not appeal.
Trevino has now filed a motion in which he seeks relief under
Johnson v. United States, 135 S.Ct. 2551 (2015),
arguing that his conviction and sentence were unlawful. Mr.
Trevino's motion did not expressly reference 28 U.S.C.
§ 2255, but a petition under that section is the only
avenue for raising claims such as these. Accordingly, the
Court notified Mr. Trevino that, unless he withdrew his
motion by August 17, 2016, the Court would construe it as a
motion for collateral relief under § 2255. Mr. Trevino
did not respond by that date, and has not withdrawn his
motion, so the Court construes the Motion for Relief in Light
of Johnson v. United States as a motion under §
to Rule 4(b) of the Rules Governing Section 2255 Proceedings
for the United States District Courts, “If it plainly
appears from the motion, any attached exhibits, and the
record of prior proceedings that the moving party is not
entitled to relief, the judge must dismiss the motion . . .
.” Here, it plainly appears that Mr. Trevino is not
entitled to relief, as his conviction and sentence were
unaffected by Johnson, so the Court dismisses the
924(c), under which Mr. Trevino was convicted, prohibits the
possession of a firearm in furtherance of either a
“drug trafficking crime” or a “crime of
violence.” 18 U.S.C. § 924(c). In
Johnson, the Supreme Court invalidated a portion of
the definition of the term “violent felony” under
the Armed Career Criminal Act, which is similar to the
definition of the term “crime of violence” under
§ 924(c). However, Mr. Trevino's conviction was for
possessing a firearm in furtherance of a “drug
trafficking crime”-possessing marijuana with the intent
to distribute it-not a “crime of violence, ” and
Johnson had no effect on the definition of a drug
trafficking crime. Therefore, Johnson does not apply
to Mr. Trevino's conviction.
Trevino next argues that the government failed to establish
facts necessary to support a conviction under § 924(c),
as it did not show that he possessed or controlled the
property where the firearm was recovered. This argument fails
for multiple procedural reasons, as a challenge to the
factual basis for a plea would need to have been raised on a
direct appeal. Moreover, even if such a claim was proper
under § 2255, it would be untimely. A motion under
§ 2255 must generally be filed within one year of when
the conviction became final, § 2255(f), but Mr.
Trevino's motion was filed nearly three years after his
conviction became final. And because this claim does not
arise under Johnson, it is not timely under the
provision allowing claims to be brought within one year of
the Supreme Court's recognition of new retroactive rules.
Additionally, in his plea agreement, Mr. Trevino waived the
right to challenge his conviction or sentence in a proceeding
under § 2255, with limited exceptions not applicable
here. [DE 116 ¶ 9(o)].
claim also fails on its merits, as Mr. Trevino expressly
admitted facts in his plea agreement that are sufficient to
support his conviction. In his plea agreement, Mr. Trevino
admitted the following facts:
In the fall of 2012 I was involved with several persons in an
agreement to distribute marijuana in LaPorte County, Indiana
and elsewhere. In September of 2012 a shipment of about 300
pounds of marijuana came to a house at 5686 E. Nappanee Trail
in Rolling Prairie, Indiana. I was involved in the possession
and distribution of that marijuana. When the police searched
the residence they located several firearms in the house.
Although I did not own the firearms, I knew that the person
who rented the house had a firearm to help protect the drugs
and large amounts of cash from the drug sales. I was fully
aware that this individual who I was working with in the
distribution of marijuana had the firearm for that purpose. I
had been staying at the house until the marijuana was sold to
others. I was to share in the drug proceeds that were located
during the search of the residence.
[DE 116 ¶ 9(h)]. Those facts are sufficient to support a
conviction for aiding and abetting a § 924(c) offense,
as Mr. Trevino took part in the drug trafficking offense and
was “fully aware” that his associate possessed a
firearm in furtherance of that offense. Rosemond v.
United States, 134 U.S. 248 (2014).
Mr. Trevino notes that one of his co-defendants, Joseph
Olivo, had his case remanded by the Supreme Court back to the
court of appeals for further consideration in light of
Johnson. Mr. Olivo's case is different in
multiple respects, though, so that action in Mr. Olivo's
case does not suggest that Mr. Trevino is entitled to relief.
First, Mr. Olivo's case was on direct appeal, whereas
this case is a collateral review, so Mr. Trevino faces
procedural obstacles to relief, as described above. Second,
Mr. Olivo's sentence (which was 292 months of
imprisonment in total) included a mandatory minimum sentence
of 15 years under the Armed Career Criminal Act based on
previous convictions for “violent felonies, ” and
his sentencing range under the Guidelines was based in part
on prior convictions for “crimes of violence, ”
which may have been affected by Johnson. In
contrast, Mr. Trevino was not sentenced under the Armed
Career Criminal Act, and his sentencing range under the
Guidelines was not affected in any way by any prior
convictions for crimes of violence. Therefore,
Johnson had no effect on Mr. Trevino's
conviction or sentence.
those reasons, the Court finds that it plainly appears from
the motion that Mr. Trevino is not entitled to relief.
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts, the Court
therefore dismisses the motion. For those same reasons, the
Court finds that the resolution of this motion is not
debatable and that Mr. Trevino's claim is not sufficient
to deserve encouragement to proceed further. The Court
therefore denies the issuance of a certificate of
Court advises Mr. Trevino that pursuant to Rule 22(b) of the
Federal Rules of Appellate Procedure, when the district judge
denies a certificate of appealability, the applicant may
request a circuit judge to issue the certificate. The Court
further advises Mr. Trevino that Rule 4(a) of the Federal
Rules of Appellate Procedure governs the time to appeal an
order entered under the rules governing § 2255
proceedings. See Rule 11(b), Rules Governing Section
2255 Proceedings for the United States District Courts. Under
Rule 4(a), when the United States is a party in a civil case,
any notice of appeal may be filed by any party within 60 days
after the judgment or order appealed from is entered. Fed. R.
App. P. 4(a); Guyton v. United States, 453 F.3d 425,
427 (7th Cir. 2006) (stating that “the time to contest
the erroneous denial of [the defendant's] first §
2255 motion was within 60 days of the decision”).
summarize, the Court CONSTRUES Mr. Trevino's Motion for
Relief in Light of Johnson v. United States [DE 297]
as a motion under § 2255. The Court further DISMISSES
that motion and DENIES the issuance of a certificate of
Mr. Trevino has submitted a letter in which he requests
various documents relating to this case. [DE 314]. The Clerk
is DIRECTED to send Mr. Trevino a copy of the docket sheet
for this case. If Mr. Trevino wishes to request a document,
he should ...