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HEATHER E. WILLIAMS, CA BAR #122664
Federal Defender
ANDRAS FARKAS, CA BAR #254302
Assistant Federal Defender
2300 Tulare Street, Suite 330
Fresno, CA 93721-2226
Telephone: 559.487.5561/Fax: 559.487.5950
Attorneys for Defendant
JUAN CARLOS NEGRETE
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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UNITED STATES OF AMERICA,
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Plaintiff,
vs.
JUAN CARLOS NEGRETE,
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Defendant.
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Case No. 1:14-CR-00266-LJO-SKO
SENTENCING MEMORANDUM &
FORMAL OBJECTIONS
Date: July 20, 2015
Time: 8:30 A.M.
Judge: Hon. Lawrence J. O’Neill
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SENTENCING MEMORANDUM & FORMAL OBJECTIONS TO THE PSR
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A. Introduction
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Juan Carlos Negrete is before this Court for sentencing after pleading guilty to a single
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count of being a felon in possession of a firearm. The Pre-Sentence Report (PSR) recommends a
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sentence of 57 months in custody. Mr. Negrete, for the reasons stated below, requests a sentence
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of 37 months.
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B. Objection to Designation of Prior CPC § 487(c) Conviction as a “Crime of
Violence”
The Presentence Report designates Mr. Negrete’s prior conviction for taking property
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from another, in violation of California Penal Code § 487(c), as a crime of violence and as a
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result, designates his base offense level as 24 pursuant to U.S.S.G. § 2K2.1(a)(2). See PSR at 8.
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The PSR, however, relies on Ninth Circuit precedent which is no longer good law after the
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Supreme Court’s decision in Johnson v. United States, ____S.Ct. _____, 2015 WL 2473450
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(June 29, 2015). Because the residual clause of the definition of a crime of violence is
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unconstitutionally vague, it would violate Mr. Negrete’s Fifth Amendment Due Process Clause
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rights to apply it to increase his sentence.1
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The definition of a crime of violence under § 2K2.1(a)(2) is found in § 4B1.2 which
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states that a crime of violence is any offense under federal or state law punishable by more than
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one year of imprisonment that: (1) has an element the use, attempted use, or threatened use of
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physical forces against the person of another, or (2) is burglary of a dwelling, arson, or extortion,
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involves use of explosives or otherwise involves conduct that presents a serious potential risk of
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physical injury to another.
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The Ninth Circuit has not addressed in a published opinion whether CPC § 487(c) is a
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crime of violence under § 4B1.1, but it has addressed whether it is a violent felony under the
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Armed Career Criminal Act (ACCA). In United States v. Wofford, 122 F.3d 787 (9th Cir. 1997),
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the Court held that a CPC § 487(c) conviction qualified as a violent felony under the Armed
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Career Criminal Act’s residual clause, which has identical language to § 4B1.1’s residual clause.
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See 924 U.S.C. § 924(e)(2)(B)(ii); see also United States v. Coronado, 603 F.3d 706, 708 (9th
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Cir. 2010) (holding that Supreme Court’s interpretation of ACCA’s residual clause applies
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equally to residual clause in § 4B1.1).
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In Wofford, the government conceded that the use or threat of physical force is not an
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element of § 487 and thus it did not qualify as a violent felony under the first prong of the test.
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Wofford, 122 F.3d at 793. Analyzing CPC 487(c) under the residual clause of the second prong,
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the Court used the categorical approach to determine whether grand theft from a person involved
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the same type of risk as generic burglary, arson, or extortion. Id. The Court held that a
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conviction for § 487(c) creates a serious risk of physical injury because the crime involves
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The Ninth Circuit has indicated that Guidelines provisions may be challenged as
unconstitutionally vague. See United States v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997). A
sentencing provision is vague if it does “not state with sufficient clarity the consequences of
violating a given criminal statute.” United States v. Gallagher, 99 F.3d 329, 334 (9th Cir.
1996).
Negrete – Sentencing Memorandum
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“direct physical contact between the perpetrator and the victim” and “the victim might resist, or a
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bystander intervene, and a struggle ensue.” Id.
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In Johnson, the Court held that the residual clause of the ACCA is unconstitutionally
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vague for two reasons. First, “the residual clause leaves grave uncertainty about how to estimate
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the risk posed by a crime.” Johnson at *5. Second “the residual clause leaves uncertainty about
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how much risk it takes for a crime to qualify as violent.” Id. The Court noted that the language
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and structure of the residual clause and the attendant procedure courts have developed to apply it
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invites arbitrary judicial application:
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Deciding whether the residual clause covers a crime thus requires a court to
picture the kind of conduct that the crime involves in “the ordinary case,” and to
judge whether that abstraction presents a serious potential risk of physical injury.
James, supra, at 208, 127 S.Ct. 1586. The court’s task goes beyond deciding
whether creation of risk is an element of the crime. That is so because, unlike the
part of the definition of a violent felony that asks whether the crime “has as an
element the use . . . of physical force,” the residual clause asks whether the crime
“involves conduct ” that presents too much risk of physical injury. What is more,
the inclusion of burglary and extortion among the enumerated offenses preceding
the residual clause confirms that the court’s task also goes beyond evaluating the
chances that the physical acts that make up the crime will injure someone. The act
of making an extortionate demand or breaking and entering into someone’s home
does not, in and of itself, normally cause physical injury. Rather, risk of injury
arises because the extortionist might engage in violence after making his
demand or because the burglar might confront a resident in the home after
breaking and entering.
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Johnson at *4 (emphasis added).
Johnson plainly invalidates Wofford’s holding.2 Speculating that a bystander may
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intervene or that taking property could lead to a struggle with the victim which could lead to
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physical injury is exactly the type of analysis that the Court held would “devolv[e] into
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guesswork and intuition.” Id. at *6.
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After the Supreme Court issued its decision in Johnson, it granted several writs of certiorari
raising similar issues. One of the petitions the Court granted arose from the Ninth Circuit’s
decision in United States v. Talmore, 585 F. App’x 567 (9th Cir. 2014) (unpublished). Talmore,
Gerriell E. v. United States, 2015 WL 917361 (June 30, 2015) (cert. granted). In Talmore, the
Ninth Circuit relied on precedent to affirm the District Court’s designation of a prior conviction
under California’s first degree burglary statute as a “crime of violence” under the residual clause
of § 4B1.2(a). Talmore, 585 F. App’x at 568 (citing United States v. Park, 649 F.3d 1175 (9th
Cir. 2011)).
Negrete – Sentencing Memorandum
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Failing to calculate the applicable sentencing guideline range is “significant procedural
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error” that constitutes plain error. Gall v. United States, 552 U.S. 38, 49, 50, 51, 128 S.Ct. 586
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(2007). Relying on precedent which applies the exact language and flawed analysis that the
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Supreme Court has held violates due process would result in an erroneous sentencing guideline
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range. Therefore, the Court should determine that Mr. Negrete’s base offense level is 20
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pursuant to U.S.S.G. § 2K2.1(a)(4) and, after a reduction for acceptance of responsibility, that
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his guideline range is 37 to 46 months.
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C. Conclusion
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Mr. Negrete is a very young man who has two prior convictions. He was raised by a
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single mother and now has two sons of his own and two step-sons. His pre-trial incarceration
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has been especially difficult as he missed the birth of his baby and has been incarcerated in
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Lerdo, far from his family. He looks forward to continuing his involvement in his sons’ lives
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after his release. See Exhibit A (letters from Mr. Negrete, Jasmin Rivera, Diane Vargas, and
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Maria Else). A sentence of 37 months would be three times longer than he has previously served
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in state prison (a one year commitment in 2011) and is sufficient but not greater than necessary
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to achieve the goals of sentencing.
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sentence.
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Mr. Negrete requests that the Court impose a 37 month
HEATHER E. WILLIAMS
Federal Defender
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July 6, 2015
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/s/ Andras Farkas
ANDRAS FARKAS
Assistant Federal Defender
Attorney for Defendant
JUAN CARLOS NEGRETE
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Negrete – Sentencing Memorandum
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