18-1803-pr Nunez v. United States 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 ____________________ 4 5 August Term, 2019 6 7 (Argued: August 29, 2019 Decided: March 30, 2020) 8 9 Docket No. 18-1803-pr 10 11 ____________________ 12 13 MIGUEL NUNEZ, 14 15 Petitioner-Appellant, 16 17 v. 18 19 UNITED STATES OF AMERICA, 20 21 Respondent-Appellee. 22 23 ____________________ 24 25 Before: POOLER, PARKER, and RAGGI, Circuit Judges. 26 27 Petitioner Miguel Nunez appeals from a judgment of the United States 28 District Court for the Southern District of New York (Lewis A. Kaplan, J.) 29 denying his 28 U.S.C. § 2255 motion as untimely. The district court held that 30 Nunez could not show that his motion was timely pursuant to 28 U.S.C. § 1 2255(f)(3) because the Supreme Court’s decision in Johnson v. United States, 135 S. 2 Ct. 2551 (2015), did not recognize a retroactive right not to be sentenced based 3 upon the residual clause in the Career Offender Guideline of the pre-Booker 4 Sentencing Guidelines. We hold that the district court properly concluded that 5 Johnson did not give rise to the right Nunez asserts and, therefore, correctly 6 denied his Section 2255 motion as untimely. 7 Affirmed. 8 Judge Pooler and Judge Raggi each concur in separate opinions. 9 ____________________ 10 EDWARD S. ZAS, Federal Defenders of New York, Inc., 11 Appeals Bureau, New York, NY, for Petitioner-Appellant 12 Miguel Nunez. 13 14 NATHAN REHN, Assistant United States Attorney 15 (Anna M. Skotko, Assistant United States Attorney, on 16 the brief), for Geoffrey S. Berman, United States Attorney 17 for the Southern District of New York, New York, NY, 18 for Respondent-Appellee. 19 20 21 22 23 24 25 26 2 1 POOLER, Circuit Judge: 2 Petitioner Miguel Nunez appeals from the May 24, 2018 judgment of the 3 United States District Court for the Southern District of New York (Lewis A. 4 Kaplan, J.) denying as untimely Nunez’s 28 U.S.C. § 2255 motion challenging his 5 February 7, 2000 sentence for substantive and conspiratorial Hobbs Act robbery. 6 See 18 U.S.C. § 1951(a). Nunez is currently serving 360 months’ imprisonment for 7 these crimes, a significant upward departure from the 151-to-188 month 8 Guidelines range calculated by the district court under the presumptively 9 binding pre-Booker Sentencing Guidelines. See United States v. Booker, 543 U.S. 220 10 (2005). That Guidelines range was dictated by the Career Offender Guideline, see 11 U.S.S.G. § 4B1.1, which the district court applied upon finding that Nunez’s 12 present, and two prior, convictions were all for “crime[s] of violence,” as defined 13 in the Guideline’s residual clause, id. § 4B1.2. Nunez argues that this residual 14 clause is unconstitutionally vague, and thus, his sentencing violates due process. 15 In support, Nunez relies on Johnson v. United States, 135 S. Ct. 2551 (2015), which 16 struck down an identically worded provision of the Armed Career Criminal Act 17 as unconstitutionally vague. The issue presented to ...
Original document
Source: All recent Immigration Decisions In All the U.S. Courts of Appeals