Echevarria-Pacheco v. USA, No. 3:2017cv01269 - Document 15 (D.P.R. 2018)
Court Description: OPINION AND ORDER denying 1 Motion to Vacate. Final judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 09/26/2018. (NNR)
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Echevarria-Pacheco v. USA Doc. 15 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Fra n cis co Ech e varría-Pach e co , Petitioner CIVIL NO. 17-1269 (PG) Related Crim . No. 12-714-2 (PG) v. U n ite d Sta te s o f Am e rica, Respon dent. OPIN ION AN D ORD ER Before the court is petitioner Francisco Echevarría-Pachecho’s (henceforth “Petitioner” or “Echevarría-Pacheco”) m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1), and the United States’ (or the “governm ent”) opposition thereto (Docket No. 14). For the following reasons, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D On October 4, 20 12, Echevarría-Pacheco was indicted for aiding and abetting a carjacking, in violation of 18 U.S.C. § 2119(1) (“Count One”), and possession of a firearm in furtherance of a crim e of violence, in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Two”). See Crim . No. 12-714, Docket No. 10 . Echevarría-Pacheco pled guilty to both counts. See Crim . No. 12-714, Dockets No. 25-26. On April 12, 20 13, Echevarría-Pacheco was sentenced to seventy-one m onths as to Count One, and 120 m onths as to Count Two, to run consecutively with each other, for a total of 191 m onths of im prisonm ent. See Crim . No. 12-714, Dockets No. 40 -41. Echevarría-Pacheco tim ely appealed, but the First Circuit Court of Appeals sum m arily affirm ed his conviction and sentence. See Crim . No. 12-714, Docket No. 65. Dockets.Justia.com Civ. No. 17-1269 (PG) Page 2 of 7 On February 23, 20 17, Echevarría-Pacheco filed the m otion to vacate under 28 U.S.C. § 2255, arguing that his senten ce is unconstitutional in light of the Suprem e Court’s decision in J ohnson v. United States, 135 S.Ct. 2551 (20 15) (J ohnson II). See Docket No. 1. 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 States, 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 Mainly, Echevarría-Pacheco claim s that his conviction as to Count Two, to wit, possession of a firearm in furtherance of a crim e of violence in violation of 18 U.S.C. § 924(c)(1)(A), m ust be vacated because carjacking under 18 U.S.C. § 2119 fails to qualify as a “crim e of violence” under the force and residual clauses in 18 U.S.C. § 924(c). Alternatively, Petitioner alleges that aiding and abetting a carjacking fails to qualify as a crim e of violence under § 924(c). Each of Petitioner’s argum ents will be attended to in turn. A. Section 924(c)’s Residual Clause First, Echevarría-Pacheco contends that carjacking under 18 U.S.C. § 2119 cannot qualify as a crim e of violence under 18 U.S.C. § 924(c)(3)(B), 1 the statute’s residual clause, as it contains the sam e or substantially sim ilar language to the Arm ed Career Crim inal Act’s (“ACCA”) residual 1 Section 924(c)’s residual clause defin es “crim e of violence” as a felony “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. 17-1269 (PG) Page 3 of 7 clause, 18 U.S.C. § 924(e), struck down for vagueness in J ohnson II. The court does not reach the m erits of this argum ent because, as the following analysis will showcase, aiding and abetting carjacking qualifies as a crim e of violence under § 924(c)’s force clause, 18 U.S.C. § 924(c)(3)(A). B. Section 924(c)’s Force Clause To begin, the court notes that the federal carjacking statute to which Petitioner entered a guilty plea provides, in pertinent part: Whoever, with the intent to cause death or serious bodily harm takes a m otor vehicle that has been transported, shipped, or received in interstate or foreign com m erce from the person or presence of another by force and violence or by intim idation, or attem pts to do so shall [be punished in accordance with the rem ain der of this statute] 18 U.S.C. § 2119. On the other hand, the force clause here at issue defines “crim e of violence” as a felony that has “as an elem ent the use, attem pted use or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Under the categorical approach, if the least violent conduct penalized by a statute does n ot constitute a “crim e of violence,” 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). Furtherm ore, the phrase “physical force” has been construed to m ean “violent force—that is, force capable of causing physical pain or injury to another person.” J ohnson v. United States, 559 U.S. 133, 140 (20 10 ) (J ohnson I). Echevarría-Pacheco argues that federal carjacking cannot qualify as a “crim e of violence” under § 924(c)’s force clause because the offense can be com m itted by intim idation. See Docket No. 1 at 10 . Intim idation entails placing another in fear of bodily harm , which Petitioner contends does not require the use or threatened use of violent physical force against another. Petitioner further avers that offenses resulting in physical injury do not necessarily require the Civ. No. 17-1269 (PG) Page 4 of 7 use of violent physical force. See Torres-Miguel, 70 1 F.3d at 168 (holding that “[a]n offense that results in physical injury, but does not involve the use or threatened use of force, sim ply does not m eet the Guidelines definition of a crim e of violence”). Petitioner concludes that carjacking com m itted by intim idation (i.e. placing another in fear of bodily harm or death) does not require the use or threat to use violent physical force and, therefore, it does not categorically qualify as a crim e of violence under § 924(c)(3)(A). See Docket No. 1 at 12. The court disagrees. In order to convict som eone accused of federal carjacking by intim idation, “the Governm ent m ust prove that ‘at the precise m om ent he dem anded or took control over the car’ by m ean s of intim idation, the accused evidenced an intent to cause death or serious bodily harm to the victim .” Sanchez-Leon v. United States, 251 F. Supp. 3d 370 , 374 (D.P.R. 20 17) (quoting Holloway v. United States, 526 U.S. 1, 8 (1999)). Therefore, he who com m its carjacking by intim idation “m ust have em bodied a genuine threat to inflict serious bodily harm .” Id. Petitioner does not deny that federal carjacking has as an elem ent the intent to cause death or serious bodily harm to the victim . Instead, he asserts that som eone could em body a genuine threat to inflict serious bodily harm without actually using or threatening to use physical force. EchevarríaPacheco does not provide us with a single exam ple of how a federal carjacking by intim idation could occur without the use or threatened use of force. Yet, the Suprem e Court has held that “[i]t is im possible to cause bodily injury without applying force in the com m on-law sense.” United States v. Castlem an, 572 U.S. 157, 170 (20 14). This court cannot visualize a reasonably realistic scenario in which som eone could com m it a federal carjacking by in tim idation where the accused has placed the victim in fear of bodily harm or death without using or threatening to use physical force. See United States v. Ellison, 8 66 F.3d 32, 38 (1st Cir. 20 17) (quoting United States v. Fish, 758 F.3d 1, 6 (1st Cir. 20 14)) (stating that Civ. No. 17-1269 (PG) Page 5 of 7 “[w]e are not supposed to im agine ‘fanciful, hypothetical scen arios’ in assessing what the least serious conduct is that the statute covers”). The carjacking statute’s intim idation elem ent challenged by Petitioner is substantively sim ilar to the intim idation elem ent of federal bank robbery found in 18 U.S.C. § 2113(a). 2 In Ellison, 8 66 F.3d at 37, the First Circuit held that “proving ‘intim idation’ under § 2113(a) requires proving that a threat of bodily harm was m ade.” A num ber of appellate courts have also reached the conclusion that “in tim idation” under § 2113(a) has as an elem en t the use, attem pted use, or threatened use of physical force against the person of another. See United States v. McNeal, 8 18 F.3d 141, 153 (4th Cir. 20 16) (holding that “a taking ‘by intim idation’ involves the threat to use [physical] force”); United States v. McBride, 8 26 F.3d 293, 296 (6th Cir. 20 16) (“The defendant m ust at least know that his actions would create the im pression in an ordinary person that resistance would be m et by force. A taking by intim idation under § 2113(a) therefore involves the threat to use physical force.”); United States v. J enkins, 651 Fed. Appx. 920 , 924 (11th Cir. 20 16) (quoting United States v. Kelley, 412 F.3d 1240 , 1244 (11th Cir. 20 0 5)) (explaining that “intim idation occurs when an ordinary person in the teller’s position could reasonably infer a threat of bodily harm from the defendant’s acts”). If a federal bank robbery com m itted by intim idation has as an elem ent the use, attem pted use, or threatened use of physical force, then carjacking by intim idation m ust also require physical force. Furtherm ore, som eone who com m its a federal carjacking by intim idation m ust have done so with the intent to cause death or serious bodily injury to the victim , which rationally requires the use or threat to use physical force. See United States v. Gutierrez, 876 F.3d 1254, 2 The federal bank robbery statute reads, in pertinent part, that “whoever, by force and violence, or by intim idation, 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 belon gin g to . . . any ban k . . .” will have com m itted a federal bank robbery. 18 U.S.C. § 2113(a). Civ. No. 17-1269 (PG) Page 6 of 7 1257 (9th Cir. 20 17) (holding that “[t]o be guilty of carjacking ‘by intim idation,’ the defendant m ust take a m otor vehicle through conduct that would put an ordinary, reasonable person in fear of bodily harm , which necessarily entails the threatened use of violent physical force”). Based on the foregoing, the court finds that a carjacking com m itted by intim idation qualifies as a “crim e of violence” under § 924(c)(3)(A). The sole other m eans of com m itting a carjacking pursuant to § 2119 involves the use of “force and violence.” Under such circum stances, the crim e necessarily involves the use, attem pted use, or threatened use of violent physical force. Sim ply put, federal carjacking —whether com m itted using “force and violence” or by intim idation— qualifies as a “crim e of violence” under § 924(c)(3)(A). Consequently, Petitioner’s challenge with respect to the crim e of violence aspect of § 924(c)’s force clause fails. C. Aiding and Abetting Federal Carjacking Lastly, Echevarría-Pacheco m aintains that aiding and abetting a federal carjacking does not qualify as a “crim e of violence” under § 924(c)’s force clause because the defen dant him self need not use, attem pt to use, or threaten to use physical force in order to com m it the felony. See Docket No. 1 at 18. Again, the court disagrees. Under federal law, “whoever willfully causes an act to be done which if directly perform ed by him or another would be an offense against 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 an d abetter as a m atter of law.” United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (quoting United States v. Sim pson, 979 F.2d 1282, 128 5 (8 th Cir. 1992)). Aiding and abetting is not considered a separate offense from the underlying substantive crim e. See id. at 2 (quoting United States v. Sanchez, 917 F.2d 60 7, 611 (1st Cir. 1990 )). Furtherm ore, “aiding an d abetting the com m ission of a crim e of violence is a crim e of violence itself.” Id. at 3. Civ. No. 17-1269 (PG) Page 7 of 7 In light of the foregoing, the court concludes that since federal carjacking qualifies as a “crim e of violence” under § 924(c)’s force clause, then aiding and abetting federal carjacking m ust also be considered a “crim e of violence.” The aider and abetter of a federal carjacking is legally responsible for the acts of the principal, m eaning that Echevarría-Pacheco com m itted all the elem ents of a principal carjacking that warrant the force clause’s “crim e of violence” epithet. The court thus rejects Petitioner’s claim . IV. CON CLU SION For the reasons previously explained, the court finds that Echevarría-Pacheco’s claim s are m eritless. Accordingly, his request for habeas relief under 28 U.S.C. § 2255 (Docket No. 1) is D EN IED . The case is, therefore, D ISMISSED W ITH PREJU D ICE. J udgm ent 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. § 2553(c)(2). IT IS SO ORD ERED . In San J uan, Puerto Rico, Septem ber 26, 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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