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United States v. Moreno

United States District Court, D. Minnesota

March 1, 2017

United States of America, Plaintiff,
v.
Aaron Dante Moreno, Defendant. Civil No. 16-2020 ADM

          Kevin S. Ueland, Esq., United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Aaron Dante Moreno, pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter is before the undersigned United States District Judge for a ruling on Defendant Aaron Dante Moreno's (“Moreno”) pro se Motion to Vacate under 28 U.S.C. § 2255 [Criminal Docket No. 84] (“2255 Motion”).[1] For the reasons set forth below, Moreno's Motion is denied.

         II. BACKGROUND

         On August 9, 2011, Moreno pled guilty to Count 1 of the Indictment [Docket No. 1], which charged him with felon in possession of a firearm, a violation of 18 U.S.C. § 922(g)(1). See Min. Entry [Docket No. 31]. The sentence for a conviction under § 922(g)(1) is not more than ten-years' imprisonment. 18 U.S.C. § 924(a)(2). However, under the Armed Career Criminal Act (“ACCA”), an individual who violated § 924(g) and has three previous convictions for a violent felony, a serious drug offense, or both, is subject to a fifteen-year minimum sentence. § 924(e)(1). The presentence report (“PSR”) recited that Moreno had six prior felony convictions that appeared to be predicate offenses for purpose of the ACCA, two each for burglary, assault, and terroristic threats.

         At the time Moreno was sentenced, the ACCA defined a violent felony as any crime punishable by imprisonment for a term exceeding one year that: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; (2) “is burglary, arson, or extortion, [or] involves use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” § 924(e)(2)(B). These definitions fell into three respective categories: (1) the force clause; (2) the enumerated clause; and (3) the residual clause. According to Moreno's PSR, his prior felony convictions implicate the force, the enumerated, and the residual clause of the ACCA; the PSR did not, however, expressly specify which clause of the ACCA's definition of “violent felony” encompassed the predicate offenses.

         At sentencing, the PSR was adopted without change and without further elaboration on Moreno's six ACCA predicate offenses. Based on the PSR's determination that Moreno was an armed career criminal pursuant to § 924(e)(2), the Court sentenced Moreno to the mandatory minimum sentence of 180 months. See Min. Entry [Docket No. 42]. Moreno did not directly appeal his sentence.

         On November 26, 2012, Moreno filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. See 2255 Mot. [Docket No. 47]. Moreno argued that 18 U.S.C. § 922(g) was unconstitutional in light of National Federation of Independent Business v. Sebelius, 132 S.Ct. 2566 (2012), and that he received ineffective assistance of counsel. This § 2255 motion did not raise any challenges to his prior felony convictions. On January 31, 2013, that § 2255 motion was denied . See Mem. Op. Order [Docket No. 53].

         In 2015, the United States Supreme Court held that the ACCA's residual clause-defining a violent felony as one that “otherwise involves conduct that presents a serious potential risk of physical injury to another”-is unconstitutionally vague. See Johnson v. United States, 135 S.Ct. 2551, 2563 (2015) (“[I]mposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process.”). In 2016, the Supreme Court held that Johnson announced a new substantive rule of constitutional law that applies retroactively to cases on collateral appeal. Welch v. United States, 136 S.Ct. 1257 (2016).

         After Johnson and Welch, Moreno's prior felony convictions falling under the ACCA's residual clause cannot be used as predicate offenses for enhanced sentencing under § 924(e)(1). The Johnson decision, however, did not disturb the legality of the force and enumerated clauses of the ACCA. 135 S.Ct. at 2563. Thus, an enhanced sentence due to at least three prior felony convictions falling within those two clauses is lawful and not impacted by Johnson.

         On June 16, 2016, Moreno sought permission from the Eighth Circuit Court of Appeals to file a successive § 2255 Motion. See Mot. Vacate Under § 2255 [Docket No. 81]. Moreno argued that in light of Johnson, he no longer qualifies as an armed career criminal. See id. The Eighth Circuit granted Moreno's request on December 1, 2016. See J. USCA [Docket No. 80]. On December 12, 2016, Moreno filed this § 2255 Motion.

         III. ...


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