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United States v. Ortiz

United States District Court, D. Oregon

March 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL JESUS ORTIZ, Defendant.

          BILLY J. WILLIAMS UNITED STATES ATTORNEY JANE SHOEMAKER ASSISTANT UNITED STATES ATTORNEY ATTORNEYS FOR PLAINTIFF

          STEPHEN R. SADY CHIEF DEPUTY FEDERAL DEFENDER ELIZABETH G. DAILY ASSISTANT FEDERAL PUBLIC DEFENDER ATTORNEYS FOR DEFENDANTS

          OPINION & ORDER

          MARCO A. HERNÁNDEZ UNITED STATES DISTRICT JUDGE

         Defendant Daniel Jesus Ortiz moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, arguing that the portion of his sentence imposed under 18 U.S.C. § 924(c)(1)(A)(ii) should be vacated as the underlying offense of assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. § 113(a)(3) is not a crime of violence under § 924(c)(3). The Court denies his motion because assault with a dangerous weapon with intent to do bodily harm is a crime of violence under § 924(c)(3)'s force clause. Because of this determination, the Court does not address the other issues raised by the parties including waiver, timeliness, and the validity of § 924(c)(3)'s residual clause.

         BACKGROUND

         On August 8, 2012, Defendant entered a guilty plea to an Information charging him with assault with a dangerous weapon with intent to do bodily harm in violation of 18 U.S.C. §§ 113(a)(3) and 1153 (Count 1), and with brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 2). Information, ECF 19; Plea Hr'g Min. Order, ECF 23. Defendant entered his guilty plea pursuant to a Plea Agreement under the Federal Rule of Criminal Procedure 11(c)(1)(C), in which the parties agreed that the appropriate sentence was 96 months imprisonment for Counts 1 and 2 and an additional 24 months imprisonment for supervised release violations. Plea Agrmt. ¶ 7, ECF 26. On August 8, 2012, Judge Haggerty imposed a 7-month prison term for the §§ 113(a)(3) and 1153 assault with a dangerous weapon conviction on Count 1, and a 84-month prison term for the § 924(c)(1)(A)(ii) brandishing a firearm in relation to a crime of violence conviction on Count 2.[1] Judgment, ECF 33. Defendant did not appeal his conviction or his sentence. However, on June 25, 2016, Defendant filed the instant motion to vacate his § 924(c)(1)(a)(ii) conviction and sentence. Def. Mot., ECF 37.

         STANDARDS

         Under § 2255, a federal prisoner in custody may move the sentencing court to vacate, set aside, or correct a sentence on the basis that the sentence violates the Constitution or the laws of the United States. 28 U.S.C. § 2255(a); United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2011) (citing Davis v. United States, 417 U.S. 333 (1974)). The petitioner must demonstrate that an error of constitutional magnitude had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); see also United States v. Montalvo, 331 F.3d 1052, 1058 (9th Cir. 2003) (“We hold now that Brecht's harmless error standard applies to habeas cases under section 2255, just as it does to those under section 2254.”). A hearing is unnecessary in cases “where the files and records . . . conclusively show that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). Here, because there are no facts in dispute and the questions presented raise solely legal issues, no hearing is required.

         DISCUSSION

         Defendant argues that his conviction under § 924(c)(1)(A)(ii) must be vacated because assault with a dangerous weapon with intent to do bodily harm under § 113(a)(3) is not a “crime of violence” as that phrase is defined in § 924(c). Section 924(c)(1)(A) provides a mandatory additional sentence for “any person who, during and in relation to any crime of violence . . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, ” for a term as specified in subsections (i), (ii), or (iii). 18 U.S.C. § 924(c)(1)(A).

         For purposes of § 924(c)(1)(A), The term “crime of violence” means an offense that is a felony and-

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(B) that 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.

18 U.S.C. § 924(c)(3). Paragraph A is referred to as the “force clause, ” and paragraph B is referred to as the “residual clause.” E.g. United States v. Bundy, No. ...


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