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Sotelo v. United States

United States Court of Appeals, Seventh Circuit

May 2, 2019

George R. Sotelo, Petitioner-Appellant,
v.
United States of America, Respondent-Appellee.

          Argued November 2, 2018

          Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 16-CV-375 - Robert L. Miller, Jr., Judge.

          Before RIPPLE, KANNE, and ROVNER, Circuit Judges.

          ROVNER, CIRCUIT JUDGE.

         In 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)[1] 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).

         I.

         Sotelo 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 him money.

         The 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' imprisonment.

         An 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. cmt. n.2.

         The 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 offender.

         He 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.

         The 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 Sullivan's conclusion.

         We 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 § ...


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