MOZ-AGUILAR v. United States

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

JULIAN MOZ-AGUILAR, Civil Action No. 21-9633 (SRC)

Petitioner,

v. OPINION

UNITED STATES OF AMERICA,

Respondent.

CHESLER, District Judge:

Presently before the Court is Petitioner Julian Moz-Aguilar’s motion to vacate his sentence

brought pursuant to 28 U.S.C. § 2255. (ECF No. 1). The Government filed a response to the

motion (ECF No. 6), to which Petitioner replied. (ECF No. 9). For the reasons set forth below,

this Court will deny the motion and deny Petitioner a certificate of appealability.

I. BACKGROUND

As Petitioner’s two claims present purely legal issues, only a brief recitation of the facts of

this matter are necessary for the purposes of this opinion. In September 19, 2013, Petitioner was

charged, alongside numerous others, by way of an indictment with engaging in a racketeering

conspiracy in violation of 18 U.S.C. § 1962(d), murder in aid of racketeering in violation of 18

U.S.C. § 1959(a)(1), use and carrying a firearm in during a crime of violence, specifically the

murder in aid of racketeering charge, in violation of 18 U.S.C. § 924(c), and causing death through

the use of a firearm in violation of 18 U.S.C. § 924(j). (See Docket No. 13-615 at ECF No. 1).

Following a jury trial, Petitioner was found guilty of all four charges. (Docket No. 13-615 at ECF

Nos. 457, 459). This Court thereafter sentenced Petitioner to three concurrent life sentences on

the racketeering conspiracy, murder in aid of racketeering, and § 924(j) charges, as well as a

consecutive 120 month sentence on the § 924(c) charge. (Docket No. 13-615 at ECF No. 511).

Petitioner appealed, and the Third Circuit affirmed his conviction and sentence. See United States

v. Oliva, 790 F. App’x 343 (2019), cert. denied, 140 S. Ct. 1232 (2020). Petitioner thereafter filed

his current motion challenging his sentence.

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).

B. Analysis

1. No evidentiary hearing is necessary in this matter

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 claims are clearly

without merit for the reasons set forth below, no evidentiary hearing is necessary in this matter.

2. Petitioner’s Double Jeopardy claim

In his first claim, Petitioner contends that his being sentenced for both the use of a firearm

in furtherance of a crime of violence pursuant to 18 U.S.C. § 924(c) and for causing death in so

doing pursuant to 18 U.S.C. § 924(j) violates the Double Jeopardy claim. Petitioner previously

raised a virtually identical claim before the Third Circuit on direct appeal. See Oliva, 790 F. App’x

at 350. The Third Circuit rejected his claim, finding that he suffered no prejudice and any error

was entirely harmless as the alleged error, if anything, benefited Petitioner:

The Government concedes that although [Petitioner] did not raise

[his Double Jeopardy claim] before the district court, the sentence

imposed violated the Double Jeopardy Clause because the court

should have merged the §§ 924(c) and (j) counts for purposes of

[Petitioner]’s judgment of conviction and sentencing.[] To be

entitled to relief he must satisfy all four prongs of the plain error

standard [including that the error prejudiced him, thereby affecting

the fairness and integrity of his criminal proceedings]. The

Government concedes that the [other] three prongs are satisfied

here. However, as [Petitioner] actually benefitted from his failure

to raise the double jeopardy challenge at sentencing his claim fails.

[Petitioner] received a mandatory life sentence on the

Violent Crime in Aid of Racketeering murder count and a

concurrent life sentence for the RICO conspiracy conviction.[] Both

sentences were appropriate, proper, and unchallenged. The

conviction he challenges – life under § 924(j) – was imposed

concurrently with his two other (concurrent) life sentences.

[Petitioner]therefore received a total sentence of life plus 120

months’ imprisonment. If [Petitioner] had raised a double jeopardy

issue, the district court would have merged the § 924(c) count with

the § 924(j) count. The merged counts would have resulted in a

mandatory consecutive life sentence pursuant to § 924(c)(1)(D)(ii).

Stated differently, [Petitioner] should have received two consecutive

life sentences, not three concurrent life sentences and a consecutive

120-month sentence. Accordingly this claim fails.

Id.

As explained by the Third Circuit, Petitioner actually benefited from the alleged error –

receiving a sentence considerably less than that he should have received had the issue been raised.1

Id. It is thus clear that the alleged error did not have a “substantial and injurious effect” upon the

outcome of Petitioner’s trial, and that any error was entirely harmless. See Fry v. Pliler, 551 U.S.

1 In his reply, Petitioner contends that this Court should find that the Third Circuit erred because

he believes it was not required that he receive a consecutive life sentence. Even if Petitioner’s

argument were not barred by the law of the case doctrine and the fact that this Court has no

authority to second guess the Court of Appeals, Petitioner is entirely mistaken. 18 U.S.C. §

924(c)(1)(D)(ii) expressly requires that any term of imprisonment resulting from a § 924(c)

conviction be consecutive to any other term of imprisonment, including any term on the underlying

crime of violence. In merging the §§ 924(c) and 924(j) convictions, this Court would therefore

have been required to impose the life sentence warranted by § 924(j), and impose it consecutively

per the terms of § 924(c). Thus the Third Circuit was entirely correct in concluding that, were the

two merged, Petitioner would have received a significantly harsher sentence of two consecutive

life sentences, and any error was therefore harmless.

112, 115-16 (2007); Brecht v. Abrahamson, 507 U.S. 619, 631 (1993). Petitioner is thus not

entitled to relief on this claim.

While the harmlessness of the error is sufficient to warrant the denial of this claim, the

Court also notes that Petitioner’s claim is procedurally barred because his claim was previously

raised on appeal. A § 2255 motion “is not a substitute for an appeal” and therefore cannot “be

used to relitigate matters decided adversely on appeal.” Nicholas, 759 F.2d at 1075. As such, §

2255 “may not be employed to relitigate questions which were raised and considered on direct

appeal.” United States v. DeRewal, 10 F.3d 100, 105 n. 4 (3d Cir. 1993) (internal quotations

omitted); see also United States v Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (“issues resolved

in a prior direct appeal will not be reviewed again by way of § 2255 motion”). Because this claim

was raised and decided on direct appeal, Petitioner is barred from receiving relief under § 2255

even had his claim warranted such relief. Travillion, 759 F.3d at 288.

3. Petitioner’s Davis claim

In his final claim, Petitioner contends that his conviction under § 924(c) should be vacated

because the Supreme Court rejected the residual clause of § 924(c) in its decision in United States

v. Davis, --- U.S. ---, 139 S. Ct. 2319 (2019). Davis, however, in no way altered the elements

clause of § 924(c) which provides that any crime which has “as an element the use, attempted use,

or threatened use of physical force against the person or property of another” will be a crime of

violence sufficient to support a conviction under § 924(c). 18 U.S.C. § 924(c)(3). Petitioner’s §

924(c) conviction did not arise out of the now invalidated residual clause, but instead from the

elements clause of § 924(c) as murder in aid of racketeering (one species of VICAR charge) is

clearly a crime of violence under the elements clause.2 As the Third Circuit explained in rejecting

Petitioner’s argument that murder in furtherance of racketeering was not a crime of violence on

direct appeal, murder in aid of racketeering does have as an element the use of force against

another, and murder in furtherance of racketeering is categorically a crime of violence under the

elements clause of § 924(c) as a result. Oliva, 790 F. App’x at 349-50; see also Borden v. United

States, --- U.S. ---, ---, 141 S. Ct. 1817, 1830 (2021) (“[t]he quintessential violent crimes, like

murder . . . involve the intentional use of force” required to meet the elements clause); United

States v. Woods, 14 F.4th 544, 553 (VICAR attempted murder charge is a crime of violence under

the elements clause of § 924(c)); Moore v. United States, --- F. App’x ---, ---, 2021 WL 5264270,

at *1-2 (2d Cir. Nov. 12, 2021) (VICAR intentional murder is crime of violence under elements

clause). As Petitioner’s underlying crime clearly remains a crime of violence under the elements

clause of § 924(c)(3), Petitioner’s claim that his conviction must be invalidated in light of Davis

is utterly without merit. As both of Petitioner’s claims are without merit, his motion to vacate

sentence is denied.

2 Petitioner attempts to assert in his brief that his § 924(c) charge arises out of his racketeering

conspiracy charge, but he is mistaken. In their verdict, the jury explicitly and “unanimously

f[ou]nd beyond a reasonable doubt that the firearm was discharged during and in relation to the

Murder in Aid of Racketeering of Christian Tigsi, as charged in [the murder in aid of racketeering

count of the indictment].” (Docket No. 13-615 at ECF No. 459 at 10). The jury thus explicitly

found Petitioner guilty of violating § 924(c) in the racketeering murder charge and not on the

racketeering conspiracy charge. That a racketeering conspiracy charge may not qualify as a crime

of violence is thus immaterial to Petitioner’s conviction as Petitioner’s § 924(c) conviction arose

out of his murder in aid of racketeering conviction).

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). As Petitioner’s claims are without merit for the

reasons discussed above, his motion is not adequate to deserve encouragement to proceed further,

and Petitioner is therefore denied a certificate of appealability.

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

Date: January 7, 2022