Career Offender’s Motion For Relief Untimely, 7th Circuit Rules

While imprisoned for the rape and robbery of two separate women, George Sotelo was convicted in 1995 for three counts of mailing communications with the intent to extort money and three counts of mailing threating communications after he threated the lives of two other women and their families if they did not continue sending him money. Sotelo received an enhanced sentence of 262 months’ imprisonment for committing “crimes of violence” based on his career offender status for his two prior qualifying convictions.

Sotelo neither appealed the sentence nor filed a collateral attack under 28 United States Code § 2255 within the one-year limitations. But more than 20 years after his 1995 conviction, he filed a § 2255 motion after the United States Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015) invalidated as unconstitutionally vague a portion of the Armed Career Criminal Act that contained the same language defining “crime of violence” as the language in the sentencing guidelines used to sentence him.

Although the government argued that Sotelo’s challenge was untimely, the Indiana Northern District Court considered his motion on the merits and denied it. Specifically, the lower court rejected Sotelo’s contention that the “threat to kidnap” or “threat to injure” found in 18 U.S.C. §§ 876(b) and (c) constituted a single indivisible element that would not categorically qualify as a crime of violence under the elements clause of U.S.S.G. § 4B1.2(a)(1). It thus reaffirmed a 7^th Circuit holding in United States v. Sullivan, 75 F.3d 297 (7th Cir. 1996), that a § 876 violation is a “crime of violence.”

A 7^th Circuit panel Thursday affirmed the lower court’s decision in Sotelo’s case when it found his § 2255 motion was untimely. It also pointed out that Sotelo’s sentence was unaffected by the unconstitutionally vague language in the residual clause of § 4B1.2 because he was sentenced under the elements clause.

“… [W]hile Sotelo is correct that to satisfy § 2255(f)(3)’s requirements he need not prove definitively at the outset that his sentence is unconstitutional in light of a new rule of constitutional law made retroactive by the Supreme Court, Johnson does not provide a back-door approach to challenge any sentence under § 4B1.1 or the ACCA,” Circuit Judge Ilana Rovner wrote for the unanimous panel.

Further, the 7^th Circuit found the only retroactively applicable case that Sotelo cited in his appeal – Johnson (2015) – said nothing as to whether § 876 was a crime of violence under the elements clause of § 4B1.2. That, the panel noted, is the only question relevant to his claim for relief.

“There is thus no need to address the more thorny legal question of whether a movant who satisfies § 2255(f)(3) with a valid claim under Johnson (or some other case declared retroactively applicable on collateral review) may advance arguments based on cases such as Mathis, Elonis, and Curtis Johnson, which post-date the conviction but have not been declared retroactively applicable on collateral review,” Rovner wrote, referencing the Supreme Court cases of Mathis v. United States, Elonis v. United States and Curtis Johnson v. United States.

“Accordingly, we leave for another day the issue of whether Mathis calls into question this court’s holding in Sullivan that § 876 is categorically a crime of violence,” the panel concluded. “We note, however, that every court to consider the issue, both before and after Johnson, has concluded that a § 876 conviction entails a threat to use physical force, and is thus categorically a crime of violence. …. So although we reject Sotelo’s motion as untimely, we note that it is not likely to have fared well on the merits either.”

The case is George R. Sotelo v. the United States of America, 16-4144.