Cancel-Marrero v. USA, No. 3:2017cv01164 - Document 9 (D.P.R. 2018)
Court Description: OPINION AND ORDER denying 1 Motion to Vacate. Judgment shall be entered accordingly. Signed by Judge Juan M. Perez-Gimenez on 9/21/2018. (PMA)
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Cancel-Marrero v. USA Doc. 9 IN TH E U N ITED S TATES D ISTRICT COU RT FOR TH E D ISTRICT OF PU ERTO RICO Migu e l Ca n ce l-Marre ro , Petitioner CIVIL NO. 17-1164 (PG) Related Crim . No. 0 0 -0 61-1 (PG) v. U n ite d State s o f Am e rica, Respon dent. OPIN ION AN D ORD ER Before the court is petitioner Miguel Cancel-Marrero’s (henceforth “Petitioner” or “CancelMarrero”) m otion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Docket No. 1) and the United States’ (or the “governm ent”) opposition thereto (Docket No. 4). For the following reasons, the court D EN IES Petitioner’s m otion to vacate. I. BACKGROU N D On April 14, 20 0 0 , Cancel-Marrero an d his co-defendants were indicted for aiding an d abetting in an arm ed carjacking, in violation of 18 U.S.C. § 2119(1) (“Count One”); aiding and abetting in the use and brandishing of a firearm in furtherance of a “crim e of violence” (i.e., the carjacking charged in Count One) in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (“Count Two”); aiding and abetting Hobbs Act robbery, in violation of 18 U.S.C. § 1951(a) (“Count Three”); and aiding and abetting in the use and brandishing of a firearm in furtherance of a “crim e of violence” (i.e., the Hobbs Act robbery charged in Count Three) in violation of 18 U.S.C. § 924(c)(1)(A) (“Count Four”). See Crim . No. 0 0 -0 61 (PG), Docket No. 29. On August 29, 20 0 0 , Cancel-Marrero pled guilty to Counts Three (Hobbs Act robbery) and Four (the second “crim e of violence” charge). See Crim . No. 0 0 -0 61 (PG), Docket No. 79. He was Dockets.Justia.com Civ. No. 17-1164 (PG) Page 2 of 12 sentenced to eighty-seven m onths as to Count Three, and eighty four as to Count Four, to be served consecutively with each other, for a total of 171 m onths. See Crim . No. 0 0 -0 61 (PG), Docket No. 92. In a separate case, Cancel-Marrero pled guilty to aiding and abetting arm ed carjacking, 18 U.S.C. § 2119(1). See Crim . No. 0 0 -0 87 (PG), Dockets No. 76-77. In that case, the court sentenced Cancel-Marrero to a term of eighty seven (8 7) m onths to be served consecutively to the 171m onth sentence im posed in Crim . No. 0 0 -0 61 (PG), the case that is presently being attacked collaterally. As a result, Cancel-Marrero’s total term of im prisonm ent is of 258 m onths. On April 25, 20 0 2, Cancel-Marrero appealed his convictions for both cases, which were subsequently affirm ed by the First Circuit Court of Appeals. See Crim . No. 0 0 -0 61 (PG), Docket No. 10 9; Crim . No. 0 0 -0 87 (PG), Docket No. 137. On February 3, 20 17, Petitioner filed his present m otion to correct sentence alleging that his conviction and sentence as to Count Four in Crim . No. 0 0 -0 61 (PG) m ust be vacated in light of J ohnson v. United States, 135 S. Ct. 2551 (20 15) (“J ohnson II”). See Docket No. 1. Cancel-Marrero did not request relief for his conviction in Crim . No. 0 0 -0 87 (PG). II. STAN D ARD OF REVIEW Pursuant to 28 U.S.C. § 2255, a federal prisoner m ay m ove to vacate, set aside, or correct his sentence “upon the ground that the sentence was im posed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to im pose such senten ce, or that the senten ce was in excess of the m axim um authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a); Hill v. United States, 368 U.S. 424, 426-427 (1962); Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 20 0 2). Civ. No. 17-1164 (PG) Page 3 of 12 III. D ISCU SSION In his m otion to correct sentence under 28 U.S.C. § 2255, Cancel-Marrero challenges his sentence an d conviction as to Count Four. Specifically, Cancel-Marrero contends that aiding and abetting Hobbs Act robbery in violation of 18 U.S.C. § 1951(a) cannot be considered a “crim e of violence” pursuant to 18 U.S.C. § 924(c). A. Void for Vagueness Challenge Firstly, Petitioner contends that Hobbs Act robbery cannot be considered a “crim e of violence” under § 924(c)’s residual clause, found in 18 U.S.C. § 924(c)(3)(B), because it is allegedly unconstitutionally vague in light of J ohnson II. 1 Petitioner bases his argum ent on the prem ise that § 924(c)’s residual clause is substantively sim ilar to the ACCA’s residual clause, § 924(e), which was struck down for vagueness in J ohnson II. As the following analysis will showcase, the court need not reach the m erits of Petitioner’s void-for-vagueness challenge regarding § 924(c)’s residual clause because Hobbs Act robbery categorically qualifies as a “crim e of violence” under § 924(c)’s “force clause” in 18 U.S.C. § 924(c)(3)(A). B. Hobbs Act Robbery The statute defining Hobbs Act robbery provides, in pertinent part: The term “robbery” m eans the unlawful taking or obtaining of personal property from the person or in the presen ce of another, against his will, by m eans of actual or threatened force, or violence, or fe ar o f in ju ry, im m ediate or future, to his person or property, or property in his custody or possession, or the person or property of a relative or m em ber of his fam ily or of anyone in his com pany at the tim e of the taking or obtaining. 1 The residual clause at § 924(c)(3)(B) states that a “crim e of violence” is an offense that is a felony and “that by its nature, in volves a substantial risk that physical force against the person or property of another m ay be used in the course of com m itting the offense.” 18 U.S.C. § 924(c)(3)(B). Civ. No. 17-1164 (PG) Page 4 of 12 18 U.S.C. § 1951(b)(1) (em phasis added). Furtherm ore, § 924(c)’s force clause defines a “crim e of violence” as a felony that “has as an elem ent the use, attem pted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Petitioner presents four argum ents challenging the classification of Hobbs Act robbery as a “crim e of violence” under § 924(c)’s force clause, an d each shall be attended to in turn. 1. Fear of Injury to a Person First, Cancel-Marrero argues that Hobbs Act robbery cannot qualify as a “crim e of violence” under § 924(c)’s force clause because the felony can be com m itted by putting som eone in “fear of injury” to his person, which allegedly does not require violent physical force, as defined in J ohnson v. United States, 559 U.S. 133 (20 10 ) (J ohnson I). 2 Under the categorical approach, if the least violent conduct penalized by a statute fails to constitute a “crim e of violence,” then the statute categorically fails to qualify as a “crim e of violence.” See United States v. Torres-Miguel, 70 1 F.3d 165, 167 (4th Cir. 20 12). Hence, Petitioner contends that if Hobbs Act robbery can be com m itted by putting som eone in “fear of injury” to his person, and doing so does not require the use, attem pted use, or threatened use of physical force, then said statute fails to categorically qualify as a “crim e of violence” under the force clause in § 924(c)(3)(A). In support of his argum ent, Petitioner relies heavily on the Fourth Circuit’s decision in United States v. Torres-Miguel, 70 1 F.3d 165 (4th Cir. 20 12), which held that physical injury, even death, can be caused without the use of violent force. See id. at 168-69. Specifically, the Court in TorresMiguel held that “[a]n offense that results in physical bodily injury, but does not involve the use or threatened use of force, sim ply does not m eet the Guidelines definition of crim e of violence.” 2 J ohnson I held that “physical force” m eans “violent force—that is, force capable of causing physical pain or injury to another person.” J ohnson, 599 U.S. at 140 . Civ. No. 17-1164 (PG) Page 5 of 12 Id. at 168 . As an exam ple, the Fourth Circuit m entions that a defendant could cause injury or death to som eone by poisoning him , which does not require the use of physical force. See id. Petitioner concludes that an individual could place another in “fear of injury” to his person by threatening to poison him , expose him to hazardous chem icals, or lock him up in side a car on a hot day, non e of which, he argues, require the use or threat to use physical force. See Docket No. 1 at 14. Cancel-Marrero’s argum ent that it is possible to com m it Hobbs Act robbery by placin g som eone in “fear of injury” to his person without using or threatening to use physical force holds no water. The Court’s reasoning in Torres-Miguel that the phrase “use of physical force” does not include “indirect applications” of force, such as in the case of poisoning, was abrogated by United States v. Castlem an, 572 U.S. 157 (20 14). See United States v. Covington, 88 0 F.3d 129, 134-35 (4th Cir. 20 18). Threatening to poison som eone would still constitute a threat to use physical force because the use of force is not “the act of ‘sprink[ling]’ the poison; it is the act of em ploying poison knowingly as a device to cause physical harm . That the harm occurs in directly, rather than directly (as with a kick or punch), does not m atter.” Castlem an, 572 U.S. at 171. Furtherm ore, for purposes of the Hobbs Act robbery statute, “[a] ‘fear of injury’ m eans fearing injury that will be produced by violent force, that is, force capable of causing physical pain or injury.” United States v. William s, 179 F.Supp.3d 141, 152 (D.Me. 20 16). See United States v. Pena, 161 F.Supp.3d 268, 279 (D.N.Y. 20 16) (stating that “the text, history, and context of the Hobbs Act com pel a reading of the phrase “fear of injury” that is lim ited to fear of injury from the use of force”). Finally, the “fear of in jury” in Hobbs Act robbery “encom passes a fear of in jury produced by physical force that is one step rem oved from , but caused by, the physical force of the offender.” William s, 179 F.Supp.3d at 153. As such, a person that com m its Hobbs Act robbery by instilling onto his victim the fear of being poisoned, exposed to chem icals, or locked in a hot Civ. No. 17-1164 (PG) Page 6 of 12 car is necessarily threatening to use physical force. It does not m atter if the injury feared by the victim is to be the direct or indirect result of the perpetrator’s use of physical force. This court cannot im agine a reasonably realistic scenario in which an individual could com m it a Hobbs Act robbery by instilling onto som eone a “fear of injury” to his person, where said injury is not to be caused by physical force. See United States v. Ellison, 866 F.3d 32, 38 (1st Cir. 20 17) (holding that “we are not supposed to im agin e ‘fanciful, hypothetical scenarios’ in assessing what the least serious conduct is that the statute covers”) (quoting United States v. Fish, 758 F.3d 1, 6 (1st Cir. 20 14)). Therefore, he who com m its a Hobbs Act robbery by instilling onto his victim a “fear of injury” to his person has threatened to use physical force, regardless of whether the injury is the direct or indirect result of said physical force. This court thus concludes that a Hobbs Act robbery com m itted by causing a “fear of injury” to som eone’s person qualifies as a “crim e of violence” under § 924(c)(3)(A), and Petitioner’s m otion to correct sentence on the present ground is D EN IED . 2. Fear of Injury to a Person’s Property Alternatively, Cancel-Marrero argues that it is possible to com m it Hobbs Act robbery by placing som eone in “fear of injury” to his property, which can supposedly be accom plished by m any m ean s short of strong physical force. For exam ple, Petitioner posits that one could theoretically com m it a Hobbs Act robbery by threatening to throw paint at som eon e’s house, pour paint on som eone’s passport, or spray-paint som eone’s car. Petitioner believes that these hypothetical threats do not constitute threats to use physical force pursuant to § 924(c)(3)(A). Petitioner also asserts that one could com m it a Hobbs Act robbery by threatening to cause a devaluation of som e intangible asset, such as a stock holding. According to him , such threats to econom ic interests do not require the use or threat to use physical force. In view of this, Civ. No. 17-1164 (PG) Page 7 of 12 Petitioner con cludes that a Hobbs Act robbery com m itted by placing som eone in “fear of injury” to his property cannot categorically qualify as a “crim e of violence” under § 924(c)(3)(A). See Docket No. 1 at 14, 15. Cancel-Marrero’s argum ent that placing som eone in “fear of injury” to his property does not require “strong” physical force lacks m erit. In J ohnson I, the Suprem e Court had to interpret whether the “physical force” requirem ent in 18 U.S.C. § 924(e)(2)(B) could be fulfilled with m ere offensive touching, or if it required som ething m ore. 3 The Court defined “physical force” as “violent force—that is, force capable of causing physical pain or injury to another person.” J ohnson, 599 U.S. at 140 . If J ohnson I’s interpretation of the “physical force” requirem ent in § 924(e)(2)(B) is to be applied to the physical force requirem ent in § 924(c)(3)(A) at issue here, then the court m ust conclude that both physical force requirem ents require “no m ore nor less than force capable of causing physical pain or injury to a person or injury to property.” United States v. Hill, 8 90 F.3d 51, 58 (2nd Cir. 20 18) (em phasis in original). By applying the logic above to Cancel-Marrero’s hypothetical scenarios, it is evident that threatening to throw paint at som eon e’s house, passport, or car does satisfy the physical force requirem ent set forth in § 924(c)(3)(A). All of these scenarios would instill onto som eone a “fear of injury” to his property. Said fear would be the direct result of a use or threat to use physical force capable of causing injury to the person’s property. See § 924(c)(3)(A) (defining “crim e of violence” in relevant part as a felony requiring the “use, attem pted use, or threatened use of physical force against the person o r p ro p e rty of another”)(em phasis added). 3 The statute at issue in J ohnson I defined a violent felony, in pertinent part, as a crim e that “has as an elem ent the use, attem pted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(e)(2)(B). Civ. No. 17-1164 (PG) Page 8 of 12 Moreover, Petitioner fails to present any realistic probability that a perpetrator could effect a Hobbs Act robbery by placing som eone in “fear of injury” to intangible econom ic assets without using or threatening to use physical force. See Gonzales v. Duena-Alvarez, 549 U.S. 18 3, 193 (20 0 7) (noting how finding that a predicate conviction fails to qualify as a “crim e of violence” using the categorical approach requires finding “a realistic probability, not a theoretical possibility, that the State would apply its statute to conduct that falls outside the gen eric definition of a crim e”). Petitioner does not present any valid exam ples of how a Hobbs Act robbery could be com m itted by threatening to devalue som e econom ic interest where the perpetrator does not threaten to em ploy the type of force capable of causing injury to som eone’s property. Petitioner cites only a single case that could be interpreted as an attem pt to provide one such exam ple. Said case, United States v. Iozzi, 420 F.2d 512 (4th Cir. 1970 ), involves a defendant who “obtained or attem pted to obtain m oney from building contractors w ith th e ir co n s e n t by causing the contractors to fear financial and econom ic loss.” Id. at 513 (em phasis added). As the previous quote highlights, the conduct charged in Iozzi consisted of a Hobbs Act e xto rtio n , not a Hobbs Act ro bbe ry, as is the case here. See Hill, 8 90 F.3d at 60 n. 9. Therefore, the conduct charged in Iozzi is not analogous to the conduct for which Cancel-Marrero was convicted, to wit, Hobbs Act robbery. In conclusion, a Hobbs Act robbery that is accom plished by placing som eone in fear of injury to his property qualifies as a “crim e of violence” under § 924(c)’s force clause because it requires the use or threatened use of physical force. As a result, Petitioner’s m otion to correct sentence on this ground is without m erit, and it is consequently D EN IED . Civ. No. 17-1164 (PG) Page 9 of 12 3. Mens Rea Required by Hobbs Act Robbery Petitioner argues that in order for a felony to qualify as a “crim e of violence” under § 924(c)’s force clause, it m ust involve the in te n tio n a l use or threat to use physical force. See Docket No. 1 at 16-17. Cancel-Marrero contends that com m itting a Hobbs Act robbery by putting som eone in “fear of injury” to his person or property does not require the intentional use or threat to use physical force. Thus, Petitioner concludes that Hobbs Act robbery fails to qualify as a “crim e of violence” under § 924(c)(3)(A). In support of his argum ent, Cancel-Marrero states that the “fear of injury” elem ent of Hobbs Act robbery is substantively identical to the “intim idation” elem ent of federal bank robbery under 18 U.S.C. § 2113(a). 4 Petitioner alleges that the “intim idation” elem ent of the federal bank robbery statute falls short of the m ens rea necessary for the felony to qualify as a “crim e of violence” under § 924(c)’s force clause because “intim idation” does not require that the defendant in te n tio n a lly place another in fear of injury. After applying this logic via analogy to the statute at issue here, Petitioner concludes that Hobbs Act robbery likewise fails to qualify as a “crim e of violence” because placing som eone in “fear of injury” does not require the intentional use or threat to use physical force. Petitioner’s claim rests on an erroneous interpretation of the federal bank robbery statute insofar as the First Circuit has held that a federal bank robbery com m itted via intim idation indeed constitutes a “crim e of violence” pursuant to § 924(c)’s force clause. See Hunter v. United States, 8 73 F.3d 38 8 (1st Cir. 20 17). Irrespective of whether or not federal bank robbery constitutes a “crim e of violence,” the felony at issue here, Hobbs Act robbery, “requires proof 4 The federal bank robbery statute provides, in pertinent part, that “[w]hoever, by force and violence, or by in tim id atio n , takes, or attem pts to take, from the person or presence of another, or obtains or attem pts to obtain by extortion any property or any other thin g of value belongin g to … any bank” will have com m itted federal ban k robbery. 18 U.S.C. § 2113(a) (em phasis added). Civ. No. 17-1164 (PG) Page 10 of 12 that a defendant ‘kn o w in gly a n d w illfu lly’ obtained property from the person or corporation robbed by m eans of robbery . . . and thus requires a defendant to have acted in te n tio n a lly.” United States v. William s, 179 F.Supp.3d 141, 154 (D.Me. 20 16) (em phasis added). Furtherm ore, in order to find a defendant guilty of Hobbs Act robbery, “the Governm ent m ust prove beyond a reasonable doubt that the defendant induced som eone to part with property, the defen dant kn o w in gly an d w illfu lly did so by extortionate m eans, and the extortionate transaction affected interstate com m erce.” Id. (quoting United States v. Cruzado-Laureano, 40 4 F.3d 470 , 48 0 (1st Cir. 20 0 5)) (em phasis added). As such, Hobbs Act robbery requires the in te n tio n a l use or threat to use physical force, and Petitioner’s analogy to bank robbery is inapposite. Based on the an alysis above, this court concludes that Hobbs Act robbery com m itted by placing som eone in “fear of injury” to his person or property qualifies as a “crim e of violence” because it “has as an elem ent the use, attem pted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Even though the First Circuit has yet to explicitly address the m atter, a plethora of sister courts and appellate courts have equally arrived at the conclusion that Hobbs Act robbery qualifies as a “crim e of violence” under the force clause in § 924(c)(3)(A). See United States v. William s, 179 F.Supp.3d 141 (D.Me. 20 16); United States v. Howard, 650 Fed.Appx. 466 (9th Cir. 20 16); United States v. House, 825 F.3d 38 1 (8 th Cir. 20 16); United States v. Robinson, 844 F.3d 137 (3rd Cir. 20 16); United States v. Griffin, Crim . No. 16-10 0 23, 20 17 WL 12760 48 (D.Mass. February 10 , 20 17); United States v. Seam s, Crim . No. 14-0 49, 20 17 WL 2982962 (D.R.I. J uly 12, 20 17); United States v. Gooch, 8 50 F.3d 28 5 (6th Cir. 20 17); United States v. Rivera, 847 F.3d 847 (7th Cir. 20 17); United States v. Hill, 8 90 F.3d 51 (2nd Cir. 20 18). This court finds the weight of this authority to be persuasive. It follows, then, that even the least violent alternative m eans of com m itting Hobbs Act robbery constitutes a “crim e of violence” under the force clause in § 924(c)(3)(A) because it has Civ. No. 17-1164 (PG) Page 11 of 12 as an elem ent the “use, attem pted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Consequently, any m eans of com m itting Hobbs Act robbery that is m ore violent than by causing “fear of injury” to a person or his property is also deem ed sufficient for m eeting the requirem ent set by § 924(c)(3)(A). As a result, Petitioner’s claim s alleging that Hobbs Act robbery fails to qualify as a “crim e of violence” are without m erit, and are therefore D EN IED . 4. Aiding and Abetting Hobbs Act Robbery Lastly, Petitioner asserts that aid in g an d a be ttin g a Hobbs Act robbery does not require the use, attem pted use, or threatened use of violent physical force because the jury need not find that the defendant him self used force to com m it the aforem entioned felony. Therefore, aiding and abetting the offense allegedly fails to categorically qualify as a “crim e of violence” under § 924(c)’s force clause. See Docket No. 1 at 17-18. Under federal law, “whoever willfully causes an act to be done which if directly perform ed by him or another would be an offense against the United States, is punishable as a prin cipal.” 18 U.S.C. § 2(b). In other words, “one who aids and abets an offense ‘is punishable as principal’ . . . and the acts of the principal becom e those of the aider an d abetter as a m atter of law.” United States v. Mitchell, 23 F.3d 1, 3 (1st Cir. 1994) (quoting United States v. Sim pson, 979 F.2d 1282, 128 5 (8 th Cir. 1992)). Aiding and abetting is not considered a separate offense from the underlying substantive crim e. See Mitchell, 23 F.3d at 2 (quoting United States v. Sanchez, 917 F.2d 60 7, 611) (1st Cir. 1990 ). Furtherm ore, “aiding and abetting the com m ission of a crim e of violence is a crim e of violence itself.” Mitchell, 23 F.3d at 3. As the above analysis showcases, Hobbs Act robbery categorically qualifies as a “crim e of violence” under the force clause in § 924(c)(3)(A). Therefore, aidin g and abetting a Hobbs Act Civ. No. 17-1164 (PG) Page 12 of 12 robbery m ust logically be considered a “crim e of violence” as well. The aider and abetter of a Hobbs Act robbery is legally responsible for the acts of the principal, m eaning that Can celMarrero com m itted all the elem ents of a principal Hobbs Act robbery that m erit the epithet of a “crim e of violence” under the force clause in question. Thus, Cancel-Marrero’s argum ent on this ground lacks m erit an d is D EN IED . IV. CON CLU SION Based on the above-cited cases, the court finds that Cancel-Marrero’s argum ents regarding Hobbs Act robbery, as defined in 18 U.S.C. § 1951(a), and the force clause in 18 U.S.C. § 924(c)(3)(A) are m eritless. Accordingly, his request for habeas relief on these grounds is D EN IED . Based on the foregoing, the court denies Petitioner’s request for habeas relief under 28 U.S.C. § 2255 (Docket No. 1). The case is therefore D ISMISSED W ITH PREJU D ICE. J udgm ent shall be entered accordingly. V. CERTIFICATE OF APPEALABILITY It is further ordered that no certificate of appealability should be issued in the event that the Petitioner files a notice of appeal because there is no substantial showing of the denial of a constitutional right within the m eaning of 28 U.S.C. § 2253(c)(2). IT IS SO ORD ERED . In San J uan, Puerto Rico, Septem ber 21, 20 18 . S/ J UAN M. PÉREZ-GIMÉNEZ JU AN M. PEREZ-GIMEN EZ SEN IOR U .S. D ISTRICT JU D GE
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