ALTAMIRANO

v.

UNITED STATES

THIS MATTER is before the Court on the Motion to Vacate Sentence (DE¹; DE 9) (“Motion”) filed by Movant Christopher Altamirano (“Movant” or “Mr. Altamirano”) pursuant to 28 U.S.C. § 2255 to which the Government filed a response (DE 10) and Mr. Altamirano replied (DE 11).1 For the reasons set forth below, the Movant’s Motion to Vacate Sentence (DE¹) is DENIED.

I. BACKGROUND

On June 13, 2014, the Movant, along with ten (10) other codefendants, were charged by Superseding Indictment with violations of various federal narcotics and

A “crime of violence” is defined as a felony that (1) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” (the “force clause”) or (2) “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense” (the “residual clause” or “risk-of-force clause”). See 18 U.S.C. §§ 924(c)(3)(A) – (B). Team” (“BMT”) that operated as a criminal organization in Little Havana from 2008 to 2014.4 Further, law enforcement agents and witnesses for the Government testified that on November 20, 2013, the Movant and his coconspirators robbed five (5) people of cash and several cell phones at gunpoint and then, while fleeing the scene after the robbery,

the Movant discharged a firearm into the air. (CDE 815 at 4–6; CDE 831 at 50–51; CDE 833 at 59.) At the conclusion of the Government’s case-in-chief, Mr. Altamirano filed a Motion for a Judgment of Acquittal pursuant to Federal Rule of Criminal Procedure 29 as to Counts I, VI, and VII, which the Court denied. (CDE 877 at 143, 145.) Shortly thereafter the Defense rested, and the Court charged the jury. After receiving its instructions, the jury began its deliberations and subsequently returned a verdict. The jury found the

Movant Guilty as to Counts¹, 6, 7, 14, 15, 16, 29, 31, and 32, and Not Guilty as to Count 17 (CDE 906). The Court sentenced Mr. Altamirano for a total term of 235 months of imprisonment, which consists of concurrent terms of 175 months as to Counts¹, 6, 14, 15, 16, 29, 31, and 32 and a consecutive term of sixty (60) months as to Count 7. (CDE 1476.)

II. LEGAL STANDARD

A federal prisoner is entitled to relief under Title 28, United States Code, Section 2255 (“Section 2255”) if the court imposed a sentence that: (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum sentence authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); see also Murphy v. United States, 634 F. 3d 1303, 1306 (11th Cir. 2011).5

In United States v. Davis, the Supreme Court held that Section 924(c)’s residual clause, 18 U.S.C. § 924(c)(3)(B), defining a “crime of violence” is unconstitutionally vague, finding it materially indistinguishable from Section 924(e)’s residual clause struck down in Johnson v. United States. See Davis, 139 S.Ct. 2319, 2236 (2019); Johnson, 135 S.Ct. 2551, 2557 (2015); see also 18 U.S.C. § 924(e)(2)(B)(ii). Under Section 924(c)’s residual clause, a “crime of violence” is defined as an offense that is a felony and “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. §

924(c)(3)(B). As interpreted by the Supreme Court, this unconstitutionally vague definition meant courts “had to disregard how the defendant actually committed his crime”

Davis, however, did not suggest that the definition of a “crime of violence” as defined by Section 924(c)’s “force clause”, 18 U.S.C. § 924(c)(3)(A), was unconstitutionally vague or suspect. Under the force clause, a “crime of violence” is an offense that is a felony and “has as an element the use, attempted use, or threatened use of physical force against the person or property of another.” 18 U.S.C. § 924(c)(3)(A). Using the force clause’s definition, courts employ a categorical approach, separate from the residual clause’s rejected approach, to determine whether an offense is a crime of violence. Compare Davis, 139 S.Ct. at 2227 (finding that the categorical approach under the residual clause was too vague in that it required a judge, and not a jury, to decide and make factual findings about the defendant’s underlying conduct), with Mathis v. United States, 579 U.S. 500, 504 (2016) (distinguishing facts, as mere real-world things extraneous to the crime’s legal requirements, from elements, which are constituent parts of a crime’s legal definition that the prosecution must prove to sustain a conviction). As such, the categorical approach under the force clause requires that the court look only to the elements of the statute of conviction and not to the defendant’s real-world conduct. Mathis, 579 U.S. at 504.

In circumstances where the statute of conviction is “divisible,” meaning it “ha[s] multiple alternative elements,” and “thereby define[s] multiple crimes,” a reviewing court must alter its approach and employ a “modified categorical approach.” Id. at 505. Under the modified categorical approach, a court shall consider a limited class of documents, such as the indictment, jury instructions, or plea agreement and colloquy, to determine what crime, involving what elements, was the defendant’s crime of conviction. Id. at 505– 06. Here, in the Eleventh Circuit, the VICAR statute is a divisible statute of conviction.

United States v. Cosimano, 2022 WL 3642170, at *6 (11th Cir. Aug. 22, 2022) (citing Alvarado Linares v. United States, 44 F. 4th 1334, 1342 (11th Cir. 2022)). By its definition, the VICAR statute prohibits a number of offenses committed in aid of racketeering, including murder, kidnapping, assault with dangerous weapons, and threats “to commit a crime of violence against any individual in violation of the laws of any State or the United States.” 18 U.S.C. § 1959(a).

III. DISCUSSION

A. Altamirano’s § 924(c) Conviction Rests on a “Crime of Violence” The central issue in this case is whether the VICAR charged offense in Count VI of the Second Superseding Indictment categorically qualifies as a “crime of violence” under Section 924(c)(3)(A)’s force clause. In accordance with Eleventh Circuit precedent, the Court shall first look at how the Government charged the VICAR offense in Count VI by reviewing the indictment and jury instructions. Cosmiano, 2022 WL 3642170, at *6 (citing Mathis, 579 U.S. at 505–06). Here, a plain review of the Second Superseding Indictment shows the Government incorporated state law elements within Count VI, which reads in relevant part, that Mr. Altamirano was charged with “unlawfully assaulting . . .

with a dangerous weapon in violation of Florida Statutes Section 784.021(1)(a), all in violation of Title 18, United States Code, Sections 1959(a)(3).”⁶ (CDE 215 at 7.) Further, the jury instructions elaborate that “Defendant Altamirano is charged . . . with committing a crime of violence, specifically assault with a dangerous weapon in aid of a racketeering enterprise.” (CDE 902 at 21.) Because the Government incorporated state law elements into the indictment and jury instructions for Count VI, the court must look to the state predicate offense and analyze whether Florida’s aggravated assault is a “crime of violence” under Section 924(c). See Alvarado-Linares, 44 F. 4th at 1342–43; Cosmiano, 2022 WL 3642170, at *6 (“[W]hen . . . [the government] incorporate[s] the state law elements into the jury charge for the VICAR offense, then we must look to the state predicate offense . . . .”) By definition, Florida’s assault with a dangerous weapon, otherwise known as aggravated assault, is an assault with a deadly weapon without intent to kill or with an intent to commit a felony. FLA. STAT. § 784.021(1). In this case, to prove that Mr. Altamirano committed an assault with a dangerous weapon, [The] Government must [have] prove[n] the following four elements beyond a reasonable doubt . . . . 1. Defendant intentionally and unlawfully threatened, either by word or act, to do violence to the victims. 2. At the time, the Defendant appeared to have the ability to carry out the threat. 3. The act of the Defendant created in the mind of victims a well-founded fear that the violence was about to take place; and

4. The assault was made with a deadly weapon.

(CDE 902 at 26.)⁷ Based on these elements, it is clear that the assault with a dangerous weapon offense as charged against Movant in the Second Superseding Indictment and jury instructions requires, at minimum, the threatened use of physical force and as such, Mr. Altamirano’s conviction as to Count VI categorically qualifies as a “crime of violence” and is a proper predicate for Mr. Altamirano’ s Section 924(c) conviction under Count VII.

Furthermore, any question as to whether Mr. Altamirano’s conviction of assault with a dangerous weapon qualifies as a crime of violence is quickly foreclosed by looking

Criminal Act); Turner v. Warden, Coleman FCI (Medium), 709 F. 3d 1328, 1338 (11th Cir. 2013) (finding that a conviction under Florida Statutes Section 784.021 will always include the threatened use of physical force against another and thus qualifies as a violent felony under the Armed Career Criminal Act); United States v. Golden, 854 F. 3d 1256, 1256–57 (11th Cir. 2017) (holding that a Florida conviction for aggravated assault under Florida Statutes Section 784.021 constitutes a “crime of violence” under the elements clause of the United States Sentencing Guidelines).⁸

IV. CERTIFICATE OF APPEALABILITY

A prisoner seeking to appeal a district court’s final order denying his § 2255 motion to vacate has no absolute entitlement to appeal but must obtain a certificate of appealability (“COA”). See 28 U.S.C. §2253 (c)(1); Harbison v. Bell, 556 U.S. 180, 183 (2009). This Court should issue a certificate of appealability only if the movant makes “a substantial showing of the denial of a constitutional right.” See 28 U.S.C. §2253 (c)(2). Where a district court has rejected Movant’s constitutional claims on the merits, the movant must demonstrate that reasonable jurists would find the district court’s

V. CONCLUSION

For the reasons set forth above, it is ORDERED AND ADJUDGED as follows:

1. Movant's Motion to Vacate Sentence (DE 1) is DENIED;
2. No certificate of appealability shall issue;

3. The Clerk is directed to CLOSE this case.

DONE AND ORDERED in Chambers at Miami, Florida on this 29th day of September, 2023

KATHLEEN M, WILLIAMS

UNITED STATES DISTRICT JUDGE