# Cardenas v. United States

> District Court, N.D. California · December 20, 2019

URL: https://www.frixlaw.com/law-library/cases/10062559

## Case

- **Court:** District Court, N.D. California
- **Decided:** December 20, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10062559

## How later opinions describe it (automated extraction)

- holding that the standard of review for a district court’s determination of the 10 || appropriate remedy in a § 2255 is abuse of discretion

## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6 SAN JOSE DIVISION
7
UNITED STATES OF AMERICA,
8 Case No. 5:11-cr-00355-EJD-30
Plaintiff,
9 ORDER GRANTING DEFENDANT’S
v. 28 U.S.C. § 2255 MOTION TO VACATE
10 AND CORRECT CONVICTION AND
MARIO CARDENAS, SENTENCE
11
Defendant. Re: Dkt. No. 921
12

13 Before the Court is Defendant Mario Cardenas’ 28 U.S.C. § 2255 motion to vacate and
14 correct his conviction and sentence. Amended 28 U.S.C. § 2255 Motion to Vacate (“Mot.”), Dkt.
15 921. On December 9, 2019, the Government filed its response to Defendant’s 2255 petition.
16 Government’s Position Regarding Re-Sentencing (“Govt. Brief”), Dkt. 929. Defendant filed his
17 response to the Government’s position regarding re-sentencing on December 12, 2019. Response
18 to Government’s Position Regarding Resentencing (“Reply”), Dkt. 931.
19 In February 2017, Defendant pled guilty to one count of RICO conspiracy, in violation of
20 18 U.S.C. § 1962(d), and one count of using or possessing a firearm in furtherance of a crime of
21 violence, in violation of 18 U.S.C.§ 924(c). The latter charge, a “crime of violence” under 18
22 U.S.C. § 924(c)(3)(B) (“the residual clause”), carried a five-year (60 month) mandatory minimum
23 custodial sentence to be served consecutively to any other sentence imposed. In June, however,
24 the United States Supreme Court held that the residual clause is unconstitutionally vague. United
25 States v. Davis, 139 S. Ct. 2319, 2323–24 (2019). In light of Davis, Defendant moves under 28
26 U.S.C. § 2255 for his conviction and sentence to be vacated, set aside, and corrected. For the
27
Case No.: 5:11-cr-00355-EJD-30
1 foregoing reasons, Defendant’s motion is GRANTED.
2 I. BACKGROUND
3 On March 19, 2014, the second superseding indictment charged Defendant with four
4 offenses: RICO conspiracy, in violation of 18 U.S.C. § 1962(d) (Count 1); conspiracy to commit
5 murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(5) (Count 2); conspiracy to
6 commit assault with a dangerous weapon in aid of racketeering, in violation of 18 U.S.C. §
7 1959(a)(6) (Count 3); and use or possession of a firearm in furtherance of a crime of violence, in
8 violation of 18 U.S.C. § 924(c) (Count 4). Dkt. 149 at 2–17. Defendant pled guilty to Counts One
9 and Four, and the Government dropped Counts Two and Three. Dkt. 707.
10 On May 25, 2017, this Court sentenced Defendant to an aggregate of 100 months
11 imprisonment (40 months for Count One and a consecutive 60-month mandatory minimum
12 sentence on Count Four, the § 924(c) charge). Dkt. 747. Defendant is currently incarcerated at
13 the United States Penitentiary, Yazoo City, with a scheduled release date of July 16, 2021.
14 II. LEGAL STANDARD
15 A federal sentencing court is authorized to grant relief if it concludes that “the sentence
16 was imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255(a).
17 If the court finds that relief is warranted, it must vacate and set aside the judgment and then
18 discharge the prisoner, resentence him, grant a new trial, or correct the sentence as may appear
19 appropriate. Id. § 2255(b). A court may retroactively apply a constitutional rule of criminal
20 procedure to a prisoner’s conviction and sentence if: (1) it places a class of conduct beyond the
21 authority of the criminal law to proscribe or (2) it announces a watershed rule of criminal
22 procedure. See United States v. Brown, 2019 WL 6521942, at *2 (N.D. Cal. Nov. 8, 2019).
23 III. DISCUSSION
24 On June 24, 2019, the United States Supreme Court held that the residual clause—the very
25 statute under which Defendant was convicted on Count Four—is unconstitutionally vague. Davis,
26 139 S. Ct. at 2323–24. The Government does not dispute that Davis applies retroactively or that it
27
Case No.: 5:11-cr-00355-EJD-30
1 requires the Court to vacate Defendant’s § 924(c) conviction, i.e., Count Four. See Govt. Brief at
2 || 2. Accordingly, the Court GRANTS Defendant’s § 2255 motion and vacates Defendant’s
3 § 924(c) conviction and sentence.
4 The Government instead argues that this Court should resentence Defendant on the
5 remaining count of conviction, i.e. Count One. Jd. at 4. But, “the usual remedy is to set aside the
6 || counts on which illegal convictions were obtained and to leave untouched the valid convictions.”
7 United States v. Barron, 172 F.3d 1153, 1160 (9th Cir. 1999). The court has “wide discretion” to
8 issue whatever remedy it deems “appropriate.” Troiano v. United States, 918 F.3d 1082, 1086
9 (9th Cir. 2019) (holding that the standard of review for a district court’s determination of the
10 || appropriate remedy in a § 2255 is abuse of discretion). The Court agrees with Judge Seeborg’s
11 recent opinion in United States v. Brown, where he declined to hold a resentencing hearing due to
12 || the “straightforward nature of correcting [the defendant’s] conviction and sentence.” 2019 WL
5 13 6521942, at *4. Likewise, here, there is no need to hold a resentencing hearing because the Court
14 can easily excise the 18 U.S.C. § 924(c) conviction and sentence while leaving the 18 U.S.C.
3 15 § 1962(d) count intact. Thus, Defendant’s 18 U.S.C. § 924(c) conviction and sentence are
a 16 || vacated. As he has already served more than the 40-month custodial sentence on the 18 U.S.C.
3 17 § 1962(d) count,! he must be released forthwith from the custody of the Bureau of Prisons.
IV. CONCLUSION
19 For the foregoing reasons, Defendant’s 18 U.S.C. § 924(c) conviction and sentence are
20 || vacated. As he has already completed his sentence for Count One, he must be released forthwith
21 from the custody of the Bureau of Prisons.
22 IT IS SO ORDERED.
23 Dated: December 20, 2019
24 a] CO ( ( J. -
EDWARD J. DAVILA
25 United States District Judge
26
27 ' Defendant completed his custodial sentence for the 18 U.S.C. § 1962(d) on November 16, 2019.
Case No.: 5:1 1-cr-00355-EJD-30
28 || ORDER GRANTING DEFENDANT’S 28 U.S.C. § 2255 MOTION TO VACATE AND
CORRECT CONVICTION AND SENTENCE .

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10062559. Public record. Not legal advice.