Soto-Cosme v. USA, No. 3:2016cv02023 - Document 23 (D.P.R. 2018)
Court Description: OPINION AND ORDER denying 6 Motion to Amend/Correct; denying 17 Motion to Vacate. Final judgment shall be issued forthwith. Signed by Judge Juan M. Perez-Gimenez on 07/16/2018. (NNR)
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Soto-Cosme v. USA Doc. 23 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Ch ris tia n So to -Co s m e , Petitioner, v. CIVIL NO. 16-20 23(PG) Related Crim . No. 0 6-0 53(PG) U n ite d State s o f Am e rica, Respon dent. OPIN ION AN D ORD ER Before the court is Petitioner Christian Soto-Cosm e’s (hen ceforth “Petitioner” or “Soto-Cosm e”) m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Dockets No. 2, 17) and the United States’ (or the “governm ent”) opposition thereto (Docket No. 22). For the following reasons, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D Soto-Cosm e was originally charged in 20 0 6 in Crim inal Case No. 0 6-0 53 (PG) for three separate crim es: 1) one count for aiding and abetting in a bank robbery which put in jeopardy the life of another person by use of a dangerous weapon, in violation of 18 U.S.C. §§ 2113(a) and (d); 2) one count of aiding and abetting in the use, carrying, an d brandishing of a firearm involved in a bank robbery, in violation of 18 U.S.C. § 924(c)(1)(A)(ii); and, 3) one count of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Concurrently, Petitioner was charged in Crim inal Case No. 0 6-0 55 (PG) for: 1) robbery, in violation of 18 U.S.C. §§ 2113(a) and (d); 2) brandishing a firearm , in violation Dockets.Justia.com Civ. No. 16-20 23(PG) Page 2 of 8 of 18 U.S.C. § 924(c)(1)(A)(ii); and, 3) illegal possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On August 1, 20 0 7, Soto-Cosm e entered into a plea agreem ent with the governm ent in exchange for pleading guilty to all three counts in Crim inal Case No. 0 60 53 (PG), and counts one and three in Crim inal Case No. 0 6-0 55 (PG). Count Two of the indictm ent in Crim in al Case No. 0 6-0 55(PG) was dism issed as a result of this agreem ent. The court sentenced Soto-Cosm e to a total term of im prisonm ent of 358 m onths for all five counts. See Crim in al Case No. 0 6-0 53 (PG), Docket No. 116. On appeal, the First Circuit affirm ed Soto-Cosm e’s senten ces. See Crim in al Case No. 0 6-0 53(PG), Docket No. 139. II. STAN D ARD OF REVIEW Pursuant to 28 U.S.C. § 2255, a federal prisoner m ay m ove to vacate, set aside, or correct his sentence “upon the ground that the sentence was im posed in violation of the Constitution or laws of the United states, or that the court was without jurisdiction to im pose such sentence, or that the senten ce was in excess of the m axim um authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); Hill v. United, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 20 0 2). III. D ISCU SSION On May 31, 20 16, Petitioner filed a m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255, and in light of J ohnson v. United States, 135 S.Ct. 2551 (20 15) (J ohnson II). Soto-Cosm e asserts that his sentence under 18 U.S.C. § 924(c) m ust be vacated because the underlying count, nam ely, aiding and abetting federal bank Civ. No. 16-20 23(PG) Page 3 of 8 robbery, is not a “crim e of violence” under § 924(c). Petitioner contends that aiding and abetting federal bank robbery cannot be labeled as a “crim e of violence” under the section’s residual clause, found in § 924(c)(3)(B), as said residual clause is allegedly unconstitutionally vague after J ohnson II. 1 The court finds that it does not need to address Petitioner’s constitutional void-for-vagueness challenge regarding § 924(c)’s residual clause because federal bank robbery under §§ 2113(a) and (d) qualifies as a “crim e of violence” under § 924(c)’s “force clause,” § 924(c)(3)(A). Next, Soto-Cosm e argues that in order for a felony to be a “crim e of violence” pursuant to the “force clause” in § 924(c)(3)(A), the felony m ust have “as an elem ent the use, attem pted use o r th re ate n e d u s e o f p h ys ical fo rce against the person or property of another.” 18 U.S.C. § 924(c)(3)(A) (em phasis added). On the other hand, “whoever, by force and violence, o r by in tim id atio n , takes, or attem pts to take, from the person or presence of another, or obtains or attem pts to obtain by extortion any property or any other thing of value belonging to […] any bank […]” will have com m itted a federal bank robbery. 18 U.S.C. § 2113(a)(em phasis added). Soto-Cosm e conten ds that federal bank robbery cannot be labeled as a “crim e of violence” under § 924(c)’s “force clause” because the offense can be com m itted via intim idation, which does not require physical force. This argum ent is predicated on the prem ise that if the m ost innocent conduct penalized by a statute does not constitute a “crim e of violen ce,” then the statute categorically fails to qualify as a “crim e of violence.” See United States v. Torres-Miguel, 70 1 F.3d 165, 167 (4th Cir. 20 12). Petitioner reasons that if he could have com m itted 1 The residual clause at § 924(c)(3)(B) states that a “crim e of violence” is an offense that is a felony and “that by its nature, involves a substantial risk that physical force against the person or property of another m ay be used in the course of com m ittin g the offense.” 18 U.S.C. § 924(c)(3)(B). Civ. No. 16-20 23(PG) Page 4 of 8 federal bank robbery using intim idation alone, then the crim inal conduct does not fit the epithet of a “crim e of violence.” Even if Soto-Cosm e could have com m itted federal bank robbery via intim idation alone, said felony would still be labeled as a “crim e of violence” under § 924(c)’s force clause. In United States v. Ellison, 8 66 F.3d 32 (1st Cir. 20 17) and Hunter v. United States, 8 73 F.3d 388 (1st Cir. 20 17), the First Circuit found that the conduct prohibited by § 2113, to wit, federal bank robbery, is a “crim e of violence” pursuant to the “force clause” of the career-offender senten cing guideline and § 924(c)(3)(A), respectively. In Ellison, the court em ployed the sam e categorical approach utilized by Soto-Cosm e in order to arrive at the opposite conclusion. The Ellison court concluded that provin g intim idation under 18 U.S.C. § 2113(a) requires “proving that a threat of bodily harm was m ade.” Ellison, 8 66 F.3d at 37. The Ellison court could not foresee any realistic probability of the statute applying to the com m ission of a bank robbery where a threat of bodily harm was m ade or inferred, but the m eans of causing said bodily harm would not constitute physical force. See id. In other words, it is highly im probable to find a scen ario in which the victim of a bank robbery reasonably infers a threat of bodily harm based on the defendant’s words and actions, but said bodily harm is not the expected result of a possible physical force instigated by the defen dant. In fact, other circuits have gone so far as to say that a taking by intim idation under § 2113(a) constitutes ipso facto a threat to use physical force, as the defendant m ust know that his or her actions would create in an ordinary person the im pression that resistance would be answered with force. Id. at 36 (quoting United States v. J en kins, 651 Fed. Appx. 920 , 924 (11th Cir. 20 16)). The First Circuit in Ellison pointed out that “we are not Civ. No. 16-20 23(PG) Page 5 of 8 supposed to im agine ‘fanciful, hypothetical scenarios’ in assessing what the least serious conduct is that the statute covers.” Ellison, 8 66 F.3d at 38 (quoting United States v. Fish, 758 F.3d 1, 6 (1st Cir. 20 14)). Therefore, the analysis em ployed when assessing what is the least culpable m eans for com m itting federal bank robbery should be restricted to those m eans that fall squarely within the realm of possibility. The Ellison court thus concluded that federal bank robbery qualifies as a “crim e of violence” under the career-offender sentencing guideline’s “force clause,” U.S.S.G. § 4B1.2(a)(1), because said felony “has as an elem ent the use, attem pted use, or threatened use of physical force against the person of another.” Hunter, 8 73 F.3d at 390 (quoting Ellison, 866 F.3d at 37). Following its decision in Ellison, the First Circuit extended the analysis em ployed therein to the facts in Hunter in order to classify the conduct defined by § 2113 as a “crim e of violence” under the “force clause” of § 924(c)(3)(A). The Hunter court pointed out that the sole difference in language between the “force clause” of the career-offender sentencing guideline, U.S.S.G. § 4B1.2(a)(1), at issue in Ellison, and the “force clause” in § 924(c)(3)(A), at issue in Hunter as well as here, is the latter’s reference to the “use of physical force against the person or p ro p e rty of another.” 18 U.S.C. § 924(c)(3)(A)(em phasis added). Therefore, the scope of § 924(c)’s force clause is greater than that of U.S.S.G. § 4B1.2(a)(1), as it encom passes both persons an d property. It follows, then, that after Hunter even the least culpable alternative m ean of accom plishing the conduct prohibited by § 2113(a) and (d), federal bank robbery, is a “crim e of violence” under the “force clause” of § 924(c). Consequently, any m eans that are m ore violent than the use of intim idation in the perpetration of a bank robbery m ust also be con sidered sufficient for m eeting the requirem ents set by § 924(c)’s “force clause.” Civ. No. 16-20 23(PG) Page 6 of 8 Following the decisions in Ellison and Hunter, federal bank robbery as defin ed by § 2113, m ust be considered a “crim e of violence,” under § 924(c)(3)(A), regardless of the m eans em ployed to perfect the crim e. As a result, the court concludes that Soto Cosm e’s argum ent holds no water and his m otion to vacate is, therefore, D EN IED . Petitioner also asserts that aid in g a n d a be ttin g a federal bank robbery cannot be considered a “crim e of violence” under § 924(c)’s “force clause.” Petitioner argues that a id in g a n d a be ttin g a bank robbery, as defined by 18 U.S.C. § 2113, does not require the use, attem pted use, or threatened use of violent physical force because the jury need not find that the defendant him self used force to effect the bank robbery. Under federal law, “whoever willfully causes an act to be done which if directly perform ed by him or another would be an offense again st the United States, is punishable as a prin cipal.” 18 U.S.C § 2(b). In other words, “one who aids and abets an offense ‘is punishable as principal’ […] and the acts of the principal becom e those of the aider and abetter as a m atter of law.” United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (per curiam ) (quoting United States v. Sim pson, 979 F.2d 1282, 1285 (8th Cir. 1992)). Aiding and abetting is not considered a separate offense from the underlying substantive crim e. See Mitchell, 23 F.3d at 2 (quoting United States v. Sánchez, 917 F.2d 60 7, 611 (1st Cir. 1990 )). Furtherm ore, “aiding and abetting the com m ission of a crim e of violence is a crim e of violence itself.” Mitchell, 23 F.3d at 3. After Ellison and Hunter, the First Circuit classified federal bank robbery as a “crim e of violence” under § 924(c)’s “force clause,” therefore aiding and abetting a federal bank robbery m ust logically be considered a “crim e of violence” as well under the sam e clause. The aider an d abettor of a federal bank robbery is legally responsible for the acts of the principal, m eaning that Soto-Cosm e com m itted Civ. No. 16-20 23(PG) Page 7 of 8 all the elem ents of a principal bank robbery that m erit the epithet of a “crim e of violence” under the “force clause” of § 924(c). Based on the above-cited cases, which serve as binding precedent, the court finds that Soto-Cosm e’s argum ent regarding § 924(c)’s force clause lacks m erit. Accordingly, his request for habeas relief on these grounds is D EN IED . Lastly, Soto-Cosm e asserts that his sentence in Crim inal Case No. 0 6-0 55 (PG) was subject to an im proper enhancem ent based on the conduct that was originally charged by the later dism issed Count Two. Soto-Cosm e states that the enhancem ent was im proper as it was im posed without Petitioner being granted “any advanced warning or given the chan ce to object.” Docket No. 17 at page 16. Said enhancem ent resulted in a five-level increase to Petitioner’s total offense level. Generally, Section 2255 m otions m ust be filed within one year of the date on which the judgm ent of conviction becom es final. See 28 U.S.C. § 2255(f)(1). The First Circuit affirm ed all of Petitioner’s convictions on J uly 6, 20 0 9. See Crim inal Case No. 0 60 53(PG), Docket No. 139. Soto-Cosm e raised this present enhancem ent issue for the first tim e on J uly 11, 20 16, via a m otion to am end his original Section 2255 petition (Docket No. 6). Soto-Cosm e’s sentencing en hancem ent claim is separate and unrelated to his principal claim under J ohnson II. Therefore, the special period conceded by the United States for presenting claim s under J ohnson II does not open the door to Petitioner’s sentencing enhancem ent claim . Sin ce the J ohnson II exception does not apply to this argum ent, Petitioner’s sentencing enhancem ent claim was subject to the one-year period of lim itation im posed by 28 U.S.C. § 2255(f)(1). Because it was raised past the applicable one-year period of lim itation, the sam e is tim e barred. Civ. No. 16-20 23(PG) Page 8 of 8 IV. CON CLU SION Based on the foregoing, the court D EN IES Petitioner’s request for habeas relief under 28 U.S.C § 2255 (Dockets No. 2, 17). As such, the case is D ISMISSED W ITH PREJU D ICE. J udgment shall be entered accordingly. V. CERTIFICATE OF APPEALABILITY It is further ordered that no certificate of appealability should be issued in the event that the Petitioner files a notice of appeal because there is no substantial showing of the denial of a constitutional right within the m eaning of 28 U.S.C. § 2253(c)(2). IT IS SO ORD ERED . In San J uan, Puerto Rico, J uly 16, 20 18 . S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PEREZ-GIMEN EZ SEN IOR U .S. D ISTRICT JU D GE
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