George R. Sotelo, Petitioner-Appellant,
United States of America, Respondent-Appellee.
November 2, 2018
from the United States District Court for the Northern
District of Indiana, South Bend Division. No. 16-CV-375 -
Robert L. Miller, Jr., Judge.
RIPPLE, KANNE, and ROVNER, Circuit Judges.
ROVNER, CIRCUIT JUDGE.
1995, George R. Sotelo was convicted of three counts of
mailing extortionate communications, 18 U.S.C. § 876(b),
and three counts of mailing threatening communications, 18
U.S.C. § 876(c) After concluding that Sotelo was a career
offender under U.S.S.G. § 4B1.1, which increases the
punishment for a "crime of violence" committed
after the defendant has two prior qualifying convictions, the
district court sentenced him to a term of 262 months'
imprisonment. Sotelo neither appealed his sentence nor filed
a collateral attack under 28 U.S.C. § 2255 within the
one-year limitations period set forth in § 2255(f). But
in 2016, he filed a § 2255 motion after the Supreme
Court in Johnson v. United States, 135 S.Ct. 2551
(2015), invalidated as unconstitutionally vague a portion of
the Armed Career Criminal Act ("ACCA"), 18 U.S.C.
§ 924(e)(2)(B)(ii), containing the same language as a
portion of § 4B1.2 of the Guidelines (defining
"crime of violence" in § 4B1.1). Although the
government argued that Sotelo's challenge did not fit
within the exception in § 2255(f)(3) for motions filed
outside of the one-year limitations period and was therefore
untimely, the district court denied Sotelo's motion on
the merits. As explained below, we affirm the district
court's denial of Sotelo's motion, not on the merits,
but because Johnson does not open the door to
Sotelo's claim under § 2255(f)(3).
committed the crimes at issue here while imprisoned on other
charges. In 1995, a jury convicted Sotelo of three counts of
mailing communications with the intent to extort money and
three counts of mailing threatening communications, in
violation of 18 U.S.C. § 876(b) and (c). His convictions
stemmed from threatening letters he sent while imprisoned for
the rape of one elderly woman and the robbery of another. He
sent the letters to two separate women, unrelated to his
original crime, who he began corresponding with while in
prison. Although his initial correspondence with both women
was friendly, he ultimately threatened their lives as well
as, in the case of one of the women, the lives of her
daughter and granddaughters if they did not continue sending
district court sentenced Sotelo using the November 1, 1994
Sentencing Guidelines Manual. Although violations of §
876(b) are punishable by up to 20 years' imprisonment and
violations of § 876(c) are punishable by up to five
years, all counts were grouped under the Guidelines to
produce a single sentencing range. Before the career offender
adjustment, Sotelo faced a sentencing range of 77-96
months' imprisonment. The sentencing range with the
career-offender adjustment, however, was 210-262 months'
individual qualified as a career offender under § 4B1.1
of the 1994 Guidelines Manual if he had two prior qualifying
convictions (Sotelo concedes he did), and the offense of
conviction was a felony that was a crime of violence. The
now-familiar definition of "crime of violence"
appearing in the 1994 version of U.S.S.G. § 4B1.2(a)
covers any conviction that "(1) 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 "(2) is burglary of a dwelling, arson, or
extortion, involves use of explosives, or otherwise involves
conduct that presents a serious potential risk of physical
injury to another" (known respectively as the enumerated
offenses and the residual clause). Moreover, the guideline
commentary explains that aiding and abetting, conspiring, or
attempting to commit a crime of violence satisfies the
criteria for a crime of violence, U.S.S.G. § 4B1.2 cmt.
n.1, and that extortion is a crime of violence, id.
district court sentenced Sotelo to the top of the 262-month
career-offender range, noting that Sotelo qualified as a
career offender because each of the offenses had as an
element the threatened use of physical force against another.
On appeal, Sotelo did not challenge his sentence as a career
filed his § 2255 motion in 2016, within a year of the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), invalidating the residual
clause of the Armed Career Criminal Act, 18 U.S.C.
924(e)(2)(B)(ii), and "made retroactively applicable to
cases on collateral review," in Welch v. United
States, 136 S.Ct. 1257 (2016). See 28 U.S.C.
§ 2255(f)(3) (one-year period runs from date Supreme
Court recognizes new right retroactively applicable on
collateral review). Although the government argued that
Sotelo's challenge was untimely, the district court
considered his motion on the merits and denied it.
court rejected Sotelo's contention that the "threat
to kidnap" or "threat to injure" found in
§ 876(b) and (c) constituted a single indivisible
element that would not categorically qualify as a crime of
violence under the elements clause of § 4B1.2(a)(1).
Instead, the court reaffirmed this court's earlier
holding in United States v. Sullivan, 75 F.3d 297
(7th Cir. 1996), that a § 876 violation is a "crime
of violence." The court concluded that nothing about the
Supreme Court's decision in Johnson or
subsequent cases interpreting it called into question
granted Sotelo's request for a certificate of
appealability and directed the parties to address whether
Sotelo erroneously received an increased sentence as a career
offender under the Guidelines, see U.S. S.G.
§4B1.1, based on the sentencing court's conclusion
that § 876(b) and (c) convictions for mailing threats
are crimes of violence. We also directed the parties to
address whether Sotelo's claim was procedurally defaulted
and whether an § ...