OTERO v. United States

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

NELSON OTERO, :

: Civil Action No. 16-3927 (SRC)

Petitioner, :

:

v. : OPINION

:

UNITED STATES OF AMERICA, :

:

Respondent. :

:

CHESLER, District Judge:

Presently before the Court is Petitioner Nelson Otero’s motion to vacate sentence brought

pursuant to 28 U.S.C. § 2255 challenging his criminal conviction and sentence. (ECF No. 1).

Following an order to answer, the Government filed two responses to the motion (ECF Nos. 8,

13), to which Petitioner has replied. (ECF No. 14). For the reasons set forth below, this Court

will deny Petitioner’s motion to vacate sentence and deny Petitioner a certificate of appealability.

I. BACKGROUND

Because Petitioner’s sole claim revolves around a very discrete legal issue, only a brief

recitation of the background of this matter is necessary for the purposes of this opinion. On direct

appeal, the Third Circuit summarized the history of this matter as follows:

[Petitioner and his co-defendant] were charged with committing

seven armed robberies in New Jersey between March and May of

2010. Specifically, a superseding indictment charged each with

one count of conspiracy to commit robbery, in violation of 18 U.S.C.

§ 1951(a) (the “Hobbs Act”); seven counts of [Hobbs Act]

robbery[;] . . . and seven counts of using a firearm in connection

with a crime of violence, in violation of 18 U.S.C. § 924(c)91)(A).

[Of those seven firearms charges, one charged that the weapon in

question had been discharged, and the remaining six only charged

that the firearm had been brandished.]

Six of the robberies targeted convenience stores; in the

seventh, Appellants were charged with robbing a liquor store. The

Government presented overwhelming evidence of Appellants’ guilt

at trial, including: (1) eyewitness accounts from customers and store

employees present during the robberies; (2) surveillance video of the

robberies; (3) evidence connecting [Petitioner and his co-defendant]

to each other and to the robberies, gathered during searches of

[Petitioner’s] residence, a storage locker, and a vehicle used in one

of the robberies; (4) recordings of incriminating wiretapped phone

conversations; (5) evidence linking Appellants to the rental cars

used during the robberies; (6) New Jersey Turnpike records placing

those vehicles near the robbery locations at relevant times; (7) cell

tower date placing [Petitioner and his co-defendant] near each other

and near the robberies at relevant times; (8) ballistics evidence from

one of the robberies [during which Petitioner and his co-defendant

fired a weapon;] (9) the guns used during the robberies, found in

[Petitioner’s] home and in a car Appellants were in when they were

arrested; (10) DNA evidence arguably linking the guns to [Petitioner

and his co-defendant]; and (11) [Petitioner’s co-defendant’s] own

incriminating statements.

. . . Following a two-week trial, a jury found [Petitioner]

guilty on all counts. The District Court sentenced [Petitioner to] . .

. a total imprisonment term of 2,094 months.

United States v. Otero, 557 F. App’x 146, 147-48 (3d Cir. 2014).

During jury instructions, this Court specifically advised the jury that the seven § 924(c)

charges of which Petitioner was convicted were predicated on his substantive Hobbs Act robbery

charges and not his conspiracy charge. (Docket No. 11-23 at ECF No. 129 at 71, 86-87). The

jury was specifically informed during that charge that “counts three, five, seven, nine, eleven,

thirteen, and fifteen of the indictment each charge that the defendants . . . during and in relation to

a crime of violence, specifically Hobbs Act robbery counts set forth in counts two, four, six, eight,

ten, twelve, and fourteen, did knowingly use and carry firearms.” (Id. at 86-87). Likewise, the

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jury verdict sheet in this matter specifically identified each § 924(c) charge as arising out of a

substantive count of Hobbs Act robbery (i.e., that count three arose out of count two, count five

arose out of count four, etc.). (Docket No. 11-23 at ECF No. 91). As the jury was clearly

instructed that the § 924(c) charges arose out of the substantive Hobbs Act robbery charges and

not the conspiracy charge, and as this fact is also memorialized in the verdict sheet, it is clear that

Petitioner was not convicted of a § 924(c) violation arising out of his conspiracy charge.

II. DISCUSSION

A. Legal Standard

A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging

the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:

A prisoner in custody under sentence of a court established by Act

of Congress claiming the right to be released upon the ground that

the sentence was imposed in violation of the Constitution or laws of

the United States, or that the court was without jurisdiction to

impose such a sentence, or that the sentence was in excess of the

maximum authorized by law, or is otherwise subject to collateral

attack, may move the court which imposed the sentence to vacate,

set aside or correct the sentence.

28 U.S.C. § 2255. Unless the moving party claims a jurisdictional defect or a constitutional

violation, to be entitled to relief the moving party must show that an error of law or fact constitutes

“a fundamental defect which inherently results in a complete miscarriage of justice, [or] an

omission inconsistent with the rudimentary demands of fair procedure.” United States v. Horsley,

599 F.2d 1265, 1268 (3d Cir. 1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)), cert.

denied 444 U.S. 865 (1979); see also Morelli v. United States, 285 F. Supp. 2d 454, 458-59 (D.N.J.

2003).

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B. Analysis

1. An evidentiary hearing is not required to resolve Petitioner’s claims

A district court need not hold an evidentary hearing on a motion to vacate where “the

motion and files and records of the case conclusively show that the prisoner is entitled to no relief.”

28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005); United States v.

Day, 969 F.2d 39, 41-42 (3d Cir. 1992). “Where the record, supplemented by the trial judge's

personal knowledge, conclusively negates the factual predicates asserted by the petitioner or

indicate[s] that petitioner is not entitled to relief as a matter of law, no hearing is required.” Judge

v. United States, 119 F. Supp. 3d 270, 280 (D.N.J. 2015); see also Government of Virgin Islands

v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985); see also United States v. Tuyen Quang Pham,

587 F. App’x 6, 8 (3d Cir. 2014); Booth, 432 F.3d at 546. Because Petitioner’s sole claim is

without merit as a matter of law, no hearing is necessary to resolve this matter.

2. Petitioner’s Johnson/Dimaya/Davis claim is without merit

In his sole claim, Petitioner contends that because the residual clause of 18 U.S.C. § 924(c)

has been found unconstitutionally vague, see United States v. Davis, --- U.S. ---, 139 S. Ct. 2319

(2019), his § 924(c) convictions must be vacated as his Hobbs Act robbery convictions are not

categorically crimes of violence sufficient to support his § 924(c) convictions. Because this Court

finds that Hobbs Act robbery is categorically a crime of violence under the “force” or “elements”

clause of § 924(c), and because it is clear that none of Petitioner’s § 924(c) convictions arose out

of his accompanying conspiracy conviction, Petitioner’s claim is without merit.

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Section 924(c) provides a criminal penalty for any individual who possesses, brandishes,

or discharges a firearm in relation to either a crime of violence or a drug trafficking offense. 18

U.S.C. § 924(c). The statute defines a “crime of violence” as an offense “that is a felony” and

either (a) “has as an element the use, attempted use, or threatened use of physical force against the

person or property of another” (the “force” or “elements” clause), or (b)“by its nature, involves a

substantial risk that physical force against the person or property of another may be used in the

course of committing the offense” (the “residual” clause). 18 U.S.C. § 924(c)(3). In Johnson

and Dimaya, the Supreme Court found that the nearly identical residual clauses of two similar

statutes were unconstitutionally vague. Dimaya, 138 S. Ct. at 1213-1223 (finding residual clause

of 18 U.S.C. § 16(b) unconstitutionally vague); Johnson, 135 S. Ct. at 2561-2563 (finding residual

clause of Armed Career Criminal Act unconstitutionally vague). In Davis, the Court applied the

logic of Johnson and Dimaya to § 924(c) and held that the residual clause of § 924(c) is also

unconstitutionally vague and struck down that clause of the statute. 139 S. Ct. at 2336. The

Court in turn held that in evaluating whether a specific offense meets the requirements of the

statute, in this case the force or elements clause which remains valid following Davis, a court must

determine whether the crime meets the statute’s requirements not by looking to the actual conduct

of the offenses in question, but rather by using a categorical approach. Id.at 2330-32. Post-

Davis, then, a crime will only qualify as a “crime of violence” sufficient to support a § 924(c)

conviction where the offense in question “has as an element the use, attempted use, or threatened

use of physical force against the person or property of another.”

In his briefs, Petitioner argues that neither Hobbs Act robbery nor conspiracy to commit

Hobbs Act robbery are categorically crimes of violence under the elements clause of § 924(c).

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Petitioner further argues in his supplemental reply that, even were Hobbs Act robbery itself a crime

of violence, because conspiracy to commit such a robbery is not a crime of violence, and because

this Court can’t know which crimes the jury based its § 924(c) guilty findings on, all of Petitioner’s

§ 924(c) convictions must be vacated as they could have arisen out of the conspiracy charge.

Before addressing whether Hobbs Act robbery itself qualifies as a crime of violence, the Court

notes that Petitioner is entirely mistaken. Both in jury instructions and in the verdict sheet in

Petitioner’s underlying criminal proceedings, the jury was specifically instructed that each § 924(c)

charge did not arise out of the conspiracy charge, but instead specifically relied upon one of the

substantive Hobbs Act robbery charges. (See Docket No. 11-23 at ECF Nos. 91; 129 at 71, 86-

87). This Court therefore need not guess which substantive crimes were found by the jury to

support the § 924(c) charges, the record clearly establishes that all seven § 924(c) charges arose

out of the Hobbs Act robbery counts and not the conspiracy count. As such, so long as Hobbs

Act robbery is categorically a crime of violence under the elements clause of § 924(c), then

Petitioner’s convictions must stand and his motion to vacate sentence must be denied.

In United States v. Robinson, the Third Circuit held that Hobbs Act robbery is categorically

a crime of violence when accompanied by a conviction for brandishing or discharging a weapon

under § 924(c). United States v. Robinson, 844 F.3d 137, 140-44 (3d Cir. 2016). Because

Robinson to some extent looks to the facts of the underlying crime in applying a modified version

of the categorical approach, however, it is not clear whether Robinson remains good law in the

aftermath of Davis. While no full panel of the Third Circuit has determined whether Hobbs Act

robbery is in all instances categorically a crime of violence even when viewed without a supporting

brandishing or discharge of a weapon charge, in a concurrence one judge on the Robinson panel

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did so find by following the Second Circuit’s conclusion in United States v. Hill that Hobbs Act

robbery is always a crime of violence. Id. at 151 (Fuentes, J., concurring, citing United States v.

Hill, 832 F.3d 135 (2d Cir. 2016), amended 890 F.3d 51 (2018)). The Second Circuit explained

its holding in Hill as follows:

To determine whether an offense is a crime of violence, courts

employ what has come to be known as the “categorical approach.”

Taylor v. United States, 495 U.S. 575, 600[] (1990); see also Mathis

v. United States, --- U.S. ---, 136 S. Ct. 2243, 2248-49[] (2016)

(outlining the categorical approach); Descamps v. United States, 570

U.S. 254, 257[] (2013) (same). . . .

Under the categorical approach, courts identify “the

minimum criminal conduct necessary for conviction under a

particular statute,” [United States v.] Acosta, 470 F.3d [132,] 135

[(2d Cir. 2006)]. In doing so, courts “‘look only to the statutory

definitions’ – i.e., the elements – of [the] . . . offense[,] and not ‘to

the particular [underlying] facts.’” Descamps, 570 U.S. at 261[]

(quoting Taylor, 495 U.S. at 600. . . . As relevant here, the

categorical approach requires us to consider the minimum conduct

necessary for a conviction of the predicate offense (in this case,

Hobbs Act robbery), and then consider whether such conduct

amounts to a crime of violence under [the elements clause of §

924(c)].

One final point remains. Critically, the Supreme Court has

made clear in employing the categorical approach that to show a

predicate conviction is not a crime of violence “requires more than

the application of legal imagination to [the] . . . statute’s language.”

Gonzalez v. Duenas-Alvarez, 549 U.S. 183, 193[] (2007). As

relevant here, there must be a “realistic probability, not a theoretical

possibility,” that the statute at issue could be applied to conduct that

does not constitute a crime of violence. Id. To show that a

particular reading of the statute if realistic, a defendant “must at least

point to his own case or other cases in which the . . . courts in fact

did apply the statute in the . . . manner for which he argues.” Id.

To that end, the categorical approach must be grounded in reality,

logic, and precedent, not flights of fancy. See Moncrieffe v.

Holder, 569 U.S. 184, 190-91[] (2013) (noting that “focus on the

minimum conduct criminalized by the [relevant] statute is not an

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invitation to apply ‘legal imagination’ to the . . . offense” (quoting

Duenas-Alvarez, 549 U.S. at 193[])).

Although the question whether Hobbs Act robbery

constitutes a crime of violence under the force [or elements] clause

is a matter of first impression in our Circuit, we do not write on a

blank slate but against the backdrop of a consistent line of cases

from our sister circuits, concluding that Hobbs Act robbery satisfies

the force clause. [See, e.g., United States v. Gooch, 850 F.3d 285,

290-92 (6th Cir. 2017); United States v. Rivera, 847 F.3d 847, 848-

49 (7th Cir. 2017); Diaz v. United States, 863 F.3d 781, 783-84 (8th

Cir. 2017); United States v. St. Hubert, 883 F.3d 1319, 1328-29

(11th Cir. 2018).] . . . .

As stated above, the term “robbery” in the Hobbs Act is

defined, in relevant part, as “the unlawful taking or obtaining of

personal property from the person or in the presence of another,

against his will, buy means of actual or threatened force, or violence,

or fear of injury, immediate or future, to his person or property.”

18 U.S.C. § 19151(b)(1). [The petitioner] does not dispute that at

least two of the ways in which a Hobbs Act robbery may be

accomplished (by means of “actual or threatened force” or

“violence”) would appear, self-evidently, to satisfy § 924(c)’s force

clause . . . . He focuses instead on those Hobbs Act robberies

accomplished by putting the victim in “fear of injury” to his person

or property, arguing that such robberies can be accomplished

without the “use, attempted use, or threatened use of physical force”

so that the minimum conduct necessary to commit a Hobbs Act

robbery does not include the element necessary to qualify such

robberies as crimes of violence for the purpose of § 924(c)(3)(A). .

. .

[The petitioner] first contends that a perpetrator could rob a

victim by putting him in fear of injury to his property through non-

forceful means. He offers hypotheticals such as threatening to

throw pain on the victim’s house, to spray paint on his car, or, most

colorfully, to “pour[] chocolate syrup on his passport.” . . . H[e]

argues that Johnson v. United States, 559 U.S. 133[] (Johnson I)

(2010), made clear that the physical force that must be used,

attempted, or threatened to satisfy statutory language such as that in

§ 924(c)(3)(A) must be “violent,” “great,” or “strong.”[] On that

basis, [he] argues that, assuming his hypothetical acts would indeed

be sufficient to put a victim in “fear of injury” to his property so that

a Hobbs Act robbery might be accomplished (a proposition that is

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hardly obvious as a practical and precedential matter), the force

employed in these hypothetical cases would be insufficient to satisfy

the standard in Johnson I.[] We disagree.

[The petitioner]’s argument rests on a flawed reading of

Johnson I. In that case, the Court declined to construe “physical

force” for the purposes of § 924(e)(2)(B)(i) in line with the common-

law crime of battery, which deemed the element of “force” to be

satisfied “by even the slightest offensive touching.”[] 559 U.S. at

139[.] But in rejecting this interpretive approach, the Court did not

construe § 924(e)(2)(B)(i) to require that a particular quantum of

force be employed or threatened to satisfy [that statute’s force or

element’s clause]. The Court concluded, instead, that “physical

force” as used in § 924(e)(2)(B)(i) (which defines a violent felony

in relevant part as a crime that “has as an element the use, attempted

use, or threatened use of physical force against the person of

another”) means simply “violent force – that is, force capable of

causing physical pain or injury to another person.” 559 U.S. at

140[] (2014). . . Assuming arguendo Johnson I’s relevance to the

construction of § 924(c)(3)(A), “physical force” as used in the

provision at issue here means no more or less than force capable of

causing physical pain or injury to a person or injury to property.

See § 924(c)(3)[.] . . . [The Petitioner’s] hypotheticals then – to the

degree that they would indeed satisfy the Hobbs Act’s “fear of

injury” standard – do not fail to involve the use or threatened use of

physical force.

[The petitioner]’s second claim is no more successful. Hill

next contends that an individual can commit a Hobbs Act robbery

without using or threatening physical force by putting the victim in

fear of injury through such means, inter alia, as threatening to

withhold vital medicine from the victim to poison him. Lacking

any case in which a defendant was in fact convicted for committing

Hobbs Act robbery through such means, [he] relies principally on

hypotheticals to argue that such conduct entails an insufficient direct

application of physical force to satisfy the force clause – even if it

indisputably involves the threatened indirect application of force.

These hypotheticals are insufficient. . . .

[The petitioner] argues, in effect, that placing a victim in fear

of injury by threatening the indirect application of physical force is

not sufficient to constitute the threatened use of physical force. Yet

the Supreme Court has suggested otherwise. In [United States v.]

Castleman, [572 U.S. 157, 134 S. Ct. 1405 (2014),] the Supreme

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Court, construing “physical force” as it is employed in connection

with § 922(g)(9), made clear that physical force “encompasses even

its indirect application,” as when a battery is committed by

administering a poison: “That the harm occurs indirectly, rather than

directly (as with a kick or punch), does not matter” lest we conclude

that pulling the trigger on a gun involves no sue of force “because it

is the bullet, not the trigger, that actually strikes the victim.”[] 134

S. Ct. at 1414-15. [The petitioner] offers no persuasive reason why

the same principle should not apply to the construction of §

924(c)(3), so that, as regarding the Hobbs Act, a robbery still has as

an element “the use, attempted use, or threatened use of physical

force against the person or property of another,” notwithstanding

that it is accomplished by threatening to poison a victim, rather than

to shoot him. Some threats do not require specification of any

particular means to be effective; yet they still threaten some type of

violence and the application of some force. Consider: “That’s a

nice car – would you like to be able to continue driving it?”

. . . .

In sum, we agree with all of the circuits to have addressed

the issue . . . and hold that Hobbs Act robbery “has as an element

the use, attempted use, or threatened use of physical force against

the person or property of another.” 18 U.S.C. § 923(c)(3)(A).

Hill, 890 F.3d at 55-60.

Since the outcome of Davis, the second circuit has reaffirmed its holding that Hobbs Act

robbery remains a crime of violence under the force or elements clause of § 924(c). See United

States v. Barrett, 937 F.3d 126, 128 (2019). Several other circuits have followed suit and

reaffirmed that the substantive offense of Hobbs Act robbery remains a crime of violence under §

924(c)’s force or elements clause in the wake of Davis. See, e.g., United States v. Mathis, 932

F.3d 242, 265-66 (4th Cir. 2019); Haynes v. United States, 936 F.3d 683, 690 (7th Cir. 2019).

Considering the considerable amount of persuasive precedent which strongly suggests that Hobbs

Act robbery is a crime of violence under § 924(c)’s elements clause, this Court agrees with the

Second, Fourth, and Seventh Circuits that Hobbs Act robbery categorically qualifies as a crime of

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violence under the force or elements clause of § 924(c) which survived Davis. Thus, Petitioner’s

predicate crimes of violence which undergirded his § 924(c) convictions – all of which were

various counts of the substantive offense of Hobbs Act robbery rather than the conspiracy count –

remain valid predicate offenses. Petitioner’s argument that Davis, Johnson, and Dimaya

invalidated his § 924(c) convictions is therefore without merit as a matter of law. Petitioner’s

motion to vacate sentence is therefore denied.

III. CERTIFICATE OF APPEALABILITY

Pursuant to 28 U.S.C. § 2253(c), the petitioner in a § 2255 proceeding may not appeal from

the final order in that proceeding unless he makes “a substantial showing of the denial of a

constitutional right.” “A petitioner satisfies this standard by demonstrating that jurists of reason

could disagree with the district court’s resolution of his constitutional claims or that jurists could

conclude that the issues presented here are adequate to deserve encouragement to proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).

Because jurists of reason could not disagree with this Court’s conclusion that Petitioner’s sole

claim is clearly without merit, Petitioner has failed to make a substantial showing of the denial of

a constitutional right, and no certificate of appealability shall issue.

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IV. CONCLUSION

For the reasons stated above, Petitioner’s motion to vacate sentence (ECF No. 1) is

DENIED, and Petitioner is DENIED a certificate of appealability. An appropriate order follows.

___s/ Stanley R. Chesler____

Hon. Stanley R. Chesler,

United States District Judge

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