United States v. Moreno
665 F. App'x 678
10th Cir.2016Background
- Jose Luis Moreno pleaded guilty to Count 1 (robbery/attempted robbery under 18 U.S.C. § 1951) and Count 2 (brandishing a firearm during and in relation to a crime of violence under 18 U.S.C. § 924(c)(1)(A)(ii)) and was sentenced to 147 months.
- Moreno filed a § 2255 motion arguing Count 2 must be vacated because Count 1 did not qualify as a "crime of violence" under 18 U.S.C. § 924(c)(3), and that § 924(c)’s residual clause was unconstitutionally vague under Johnson.
- The district court denied relief, concluding Count 1 (robbery under § 1951) satisfies § 924(c)(3)(A)’s element-based definition of a "crime of violence."
- The district court observed § 924(c)(3)(B) (the residual, risk-based clause) is similar to the clause struck down in Johnson, but found it inapplicable because the predicate offense met prong (A).
- Moreno appealed the denial of his § 2255 motion and requested a certificate of appealability (COA); the Tenth Circuit evaluated whether reasonable jurists would find the district court’s assessment debatable.
Issues
| Issue | Moreno's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether Count 1 (robbery under § 1951) qualifies as a "crime of violence" supporting the § 924(c) conviction | Count 1 does not fall within § 924(c)(3)(A); § 924(c)(3)(B) (residual clause) is unconstitutionally vague per Johnson, so Count 2 must be vacated | Robbery per § 1951 explicitly requires actual or threatened force and therefore satisfies § 924(c)(3)(A) (the element-based definition) | Court held § 1951 robbery satisfies § 924(c)(3)(A); Count 2 validly predicates on Count 1 |
| Whether Johnson invalidates Moreno's § 924(c) conviction | The residual-clause vagueness ruling in Johnson renders § 924(c)(3)(B) void and undermines Count 2 | Johnson does not affect the case because the predicate offense qualifies under § 924(c)(3)(A), so Johnson's infirmity of prong (B) is irrelevant | Court held Johnson does not change outcome because conviction rests on prong (A) |
| Whether a COA should issue for appeal of the § 2255 denial | Moreno seeks COA arguing his constitutional challenge is debatable | Government contends reasonable jurists would not debate the district court’s conclusion that Count 1 meets § 924(c)(3)(A) | Court denied COA, finding the district court’s assessment not debatable |
Key Cases Cited
- Miller-El v. Cockrell, 537 U.S. 322 (COA standard for habeas appeals) (discusses certificate of appealability requirement)
- Slack v. McDaniel, 529 U.S. 473 (standard for when reasonable jurists would find district court’s assessment debatable)
- Johnson v. United States, 576 U.S. 591 (2015) (held ACCA residual clause unconstitutionally vague)