Sotelo v. United States, 922 F.3d 848

Background

In 1995 Sotelo was convicted of six counts under 18 U.S.C. § 876(b) and (c) for mailing extortionate/threatening communications while imprisoned and was sentenced as a career offender under U.S.S.G. § 4B1.1 to 262 months.
Sotelo did not appeal or file a § 2255 motion within the one-year limitations period in § 2255(f).
After Johnson v. United States and Welch made the ACCA residual-clause rule retroactive, Sotelo filed a § 2255 motion in 2016 arguing his § 876 convictions do not qualify as a "crime of violence" under § 4B1.2 and thus he was improperly sentenced as a career offender.
The district court denied the § 2255 motion on the merits, relying on precedent that § 876 is a crime of violence; Sotelo obtained a COA and appealed.
The government argued the motion was untimely because § 2255(f)(3) (one-year start date based on a newly recognized retroactive right) did not apply; the district court treated the motion on the merits but this panel affirms based on timeliness.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Sotelo's § 2255 motion is timely under 28 U.S.C. § 2255(f)(3) (one-year period restarts when Supreme Court recognizes a new retroactive right).	Sotelo contends Johnson/Welch restarted the limitations period and his 2016 filing is timely because Johnson undermines the Guidelines' residual-clause language.	The government says Johnson attacks only the residual clause and Sotelo was sentenced under the elements clause, so § 2255(f)(3) does not apply.	Court held the motion is untimely under § 2255(f)(3) because Sotelo was sentenced under the elements clause, not the residual clause Johnson invalidated.
Whether Johnson (ACCA residual-clause invalidation) opens collateral relief for sentences imposed under the pre-Booker mandatory Guidelines.	Sotelo (relying on Cross) argues Johnson recognized a new right applicable to mandatory Guidelines and restarted § 2255(f)(3).	Government sought reconsideration of Cross; argued Beckles forecloses applying Johnson to Guidelines.	Court declines to revisit Cross: Johnson can restart § 2255(f)(3) for sentences based on the mandatory Guidelines' residual clause, but that does not help Sotelo because his sentence was based on the elements clause.
Whether § 876(b)/(c) is categorically a "crime of violence" under the elements clause of U.S.S.G. § 4B1.2.	Sotelo argues, invoking Mathis/Elonis/Curtis Johnson, that § 876 is indivisible and may encompass means that do not categorically involve threatened physical force.	Government and precedent (including Sullivan) maintain § 876 convictions necessarily involve threats of physical force and thus are crimes of violence.	The court avoided deciding Mathis-based merits; it notes binding precedent holds § 876 is a crime of violence and that Sotelo’s sentence was based on the elements clause, so his § 2255 claim fails as untimely and likely would fail on the merits.
Whether Sotelo can rely on non-retroactive cases (Mathis, Elonis) to gateway a Johnson claim under § 2255(f)(3).	Sotelo tries to use Mathis and related cases to show § 876 is not a categorical crime of violence.	Government contends those cases are not retroactive and cannot satisfy § 2255(f)(3)’s gatekeeping requirement; only Johnson (retroactive) could.	Court held Sotelo cannot rely on non-retroactive post-conviction cases to bootstrap a Johnson claim; Mathis/Elonis do not make his motion timely under § 2255(f)(3).

Key Cases Cited

United States v. Booker, 543 U.S. 220 (Sup. Ct. 2005) (held federal Sentencing Guidelines are advisory post-Booker)
Welch v. United States, 136 S. Ct. 1257 (Sup. Ct. 2016) (held Johnson is retroactive on collateral review)
Beckles v. United States, 137 S. Ct. 886 (Sup. Ct. 2017) (addressed vagueness challenge to post-Booker advisory Guidelines)
Cross v. United States, 892 F.3d 288 (7th Cir. 2018) (held Johnson applies to pre-Booker mandatory Guidelines residual clause for § 2255 purposes)
United States v. Sullivan, 75 F.3d 297 (7th Cir. 1996) (held § 876 is a crime of violence)
Mathis v. United States, 136 S. Ct. 2243 (Sup. Ct. 2016) (addressed categorical approach and divisible statutes)
Elonis v. United States, 135 S. Ct. 2001 (Sup. Ct. 2015) (considered mens rea requirement for criminal threats statute)
Johnson v. United States (Curtis Johnson), 559 U.S. 133 (Sup. Ct. 2010) (defined amount of force required to qualify as a violent felony under ACCA)
Stanley v. United States, 827 F.3d 562 (7th Cir. 2016) (explained Johnson only invalidates the residual clause, not the elements clause)
United States v. Peppers, 899 F.3d 211 (3d Cir. 2018) (discussed when Johnson provides the § 2255(h) gate for collateral review)