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Ortiz v. United States

United States District Court, S.D. Indiana, Indianapolis Division

October 2, 2018

CARLOS ORTIZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255 AND DENYING CERTIFICATE OF APPEALABILITY

          TANYA WALTON PRATT, JUDGE

          I. Introduction

         In 2013 Carlos Ortiz pleaded guilty to and was sentenced by this Court for interference with commerce by robbery, brandishing a firearm in relation to a crime of violence, and being a felon in possession of a firearm in United States v. Carlos Ortiz, No. 1:12-cr-00032-TWP-DKL (S.D. Ind.). There was no plea agreement. At the time of sentencing, the term “crime of violence” as used in the brandishing count, see 18 U.S.C. § 924(c), was defined as any felony that “has as an element the use, attempted use or threatened use of physical force against the person or property of another, ” or “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.” These two clauses are nearly identical to clauses used in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). In Johnson v. United States, 576 U.S.__, 135 S.Ct. 2551 (2015), the Court held the latter clause, as used in the ACCA, the so-called “residual clause, ” unconstitutionally vague. Ortiz now seeks Section 2255 relief pursuant to Johnson, contending that the residual clause language in the statute under which he was convicted makes that statute unconstitutional as well. More specifically, Ortiz contends that his offense, which was actually an attempted Hobbs Act robbery, no longer qualifies as a crime of violence for sentencing purposes.

         For the reasons explained below, Ortiz's motion brought under 28 U.S.C. § 2255 is denied and the action dismissed with prejudice. In addition, the Court finds that a certificate of appealability should not issue.

         II. The Section 2255 Motion

          A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343 (1974). A court may grant relief from a federal conviction or sentence pursuant to § 2255 “upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The scope of relief available under § 2255 is narrow, limited to “an error of law that is jurisdictional, constitutional, or constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (internal citations omitted).

         III. Factual Background

         On October 15, 2011, Ortiz entered an Auto Zone store in Indianapolis. Brandishing a handgun and wearing a mask, Ortiz ordered the store's occupants to move to the back of the store. An armed store customer used his firearm to shoot Ortiz in the leg, interrupting the robbery. Ortiz aborted the robbery and left the store, but was arrested shortly thereafter. On October 24, 2013, Ortiz pleaded guilty to three felony counts including brandishing a firearm in relation to a crime of violence, a violation of 18 U.S.C. § 924(c)(1)(A)(ii).

         Mr. Ortiz received a sentence of 121 months, reflecting 37 months on the attempted robbery, 30 months on the felon in possession charge, and a mandatory consecutive term of 84 months, the statutory minimum under 18 U.S.C. § 924(c) for brandishing a firearm in relation to a crime of violence.

         Ortiz appealed, but his appellate attorney filed a notice that he believed any appeal was frivolous and sought to withdraw pursuant to Anders v. California, 386 U.S. 738 (1967). The Seventh Circuit Court of Appeals considered three potential arguments related to sentence, agreed they were frivolous, and dismissed the appeal. Ortiz v. United States, No. 13-3446, unpub. order (7th Cir. June 4, 2014).

         This Section 2255 motion is Ortiz's first collateral challenge to his conviction and sentence.

         III. Discussion

         Ortiz's sole ground for relief is that because Johnson held unconstitutional the residual clause of the definition of a “crime of violence” in the ACCA, so too must the residual clause of the “crime of violence” provision of 18 U.S.C. § 924(c) be unconstitutional. However, courts are examining the specific crime involved - here an armed robbery of a business engaged in interstate commerce (a “Hobbs Act” robbery, 18 U.S.C. § 1951(a)) - to determine if it qualifies as a crime of violence under the elements clause of Section 924(e)(2)(B)(i).

         A Hobbs Act robbery is a “crime of violence” for Section 924(c) purposes. United States v. Rivera, 847 F.3d 847, 848-49 (7th Cir. 2017); accord United States v. Gooch, 850 F.3d 285, 291-92 (6th Cir. 2017); United States v. Hill, 832 F.3d 135, 140-44 (2d Cir. 2016); United States v. House, 825 F.3d 381, 387 (8th Cir. 2016); In re Saint Fleur, 824 F.3d 1337, 1340-41 (11th Cir. 2016). Ortiz focuses on the attempted nature of his crime, but his argument is foreclosed by Hill v. United States, 877 F.3d 717, 718-19 (7th Cir. 2017). In Hill, the court held that when a certain offense is a violent ...


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