United States District Court, D. Kansas
MEMORANDUM AND ORDER
Thomas Marten J. Thomas Marten, Judge
defendant Jesus Sanchez was convicted on January 1, 2014 of
violating 18 U.S.C. § 1962(d), and sentenced to 120
months imprisonment. (Dkt. 906). Sanchez waived his right to
appeal (Dkt. 910) in conjunction with his plea of guilty. The
matter is now before the court on his 28 U.S.C. § 2255
motion to vacate his sentence, which argues that “the
Rico Conspiracy does not qualify as a crime of
violence.” (Dkt. 1340, at 4).
avoid the one-year limitations period for such collateral
attacks, Sanchez seeks the protection of 28 U.S.C. §
2255(f)(3), which provides an exception where the Supreme
Court has newly recognized a right not previously available.
Specifically, Sanchez invokes the protection of recent
decisions in which the Supreme Court has determined that the
term “crime of violence” used in various federal
statutes is impermissibly vague. See United States v.
Davis, __U.S.__, 139 S.Ct. 2319 (2019) (residual
“crime of violence” clause of 18 U.S.C. §
924(c)(3)(B)); Sessions v. Dimaya, __U.S.__, 138
S.Ct. 1204, 1213, 200 L.Ed.2d 549 (2018) (the term
“crime of violence, ” as incorporated into the
Immigration and Nationality Act's (INA) definition of
“aggravated felony, ” 8 U.S.C.A. §
1101(a)(43)(F); 18 U.S.C.A. § 16(b)); Johnson v.
United States, 576 U.S.__135 S.Ct. 2551, 192 L.Ed.2d 569
(2015) (residual “crime of violence” clause of
the Armed Career Criminal Act (ACCA)).
Sanchez was convicted of none of these offenses, but of a
RICO conspiracy under § 1962(d). The defendant has cited
to no cases, by the Supreme Court or otherwise, holding that
§ 1962(d) is unconstitutionally vague. Courts have
generally rejected vagueness challenges to the RICO. See
United States v. Casillas, 2019 WL 987893, at *8-9 (W.D.
Mich. Feb. 28, 2019). The “crime of violence”
issues raised in the wake of Johnson do not alter
Obviously, Johnson does not directly apply to
Defendant's case because Johnson does not
address the RICO statute. Moreover, it does not apply by
analogy or logic because Defendant has not, and cannot, find
the same type of flaws in the RICO statute that the Supreme
Court found in the ACCA. To assess the risk of violating the
RICO statute, one need only assess the risk of repeatedly
violating certain clearly enumerated state and federal laws.
Thus, the void-for-vagueness challenge to the RICO statute is
Casillas, 2019 WL 978893, at *9. See also Aller
v. United States, No. 00 CR 977, 2018 WL 4579829, at *2
(S.D.N.Y. Aug. 17, 2018) (finding consistent rejection of
vagueness attacks on the RICO statute, and observing
“Johnson does not affect this analysis”
since “the RICO statute does not contain either of the
“twin ambiguities” at issue in
the defendant knowingly and voluntarily pled guilty to
participation in a RICO conspiracy, and his participation
included attempted murder (Dkt. 884, ¶ 47) and robbery
at knifepoint. (Id. ¶ 52). The court finds that
the defendant's § 2255 claim is untimely, and in the
absence of any newly recognized right his claim is not
preserved under 28 U.S.C. § 2255(f)(3).
court denies the defendant's request for appointment of
counsel. The court finds that the defendant has adequately
and articulately (if ultimately unsuccessfully) presented his
arguments. Representation by counsel would not yield any
court declines to issue a certificate of appealability under
Rule 11 of the Rules Governing Section 2255 Proceedings. A
certificate of appealability may issue only if the applicant
has made a substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2). Such a
certificate may issue where “reasonable jurists would
find the district court's assessment of the
constitutional claims debatable or wrong.” Saiz v.
Ortiz, 392 F.3d 1166, 1171 n.3 (10th Cir. 2004) (quoting
Tennard v. Dretke, 542 U.S. 274, 282 (2004)). When a
court's ruling is based on procedural grounds, a movant
must demonstrate that “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). Because it is clear
that the arguments rejected by the court are untimely the
defendant has not satisfied these standards. The Court
therefore denies a certificate of appealability as to its
ruling on defendant's Section 2255 motion.
ACCORDINGLY ORDERED this day of August, 2019, that the
defendant petitioner's Motion to Vacate and for