IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA, ) ) ) Plaintiff, ) ) v. ) Case No. CR-15-145-D ) (No. CIV-19-1012-D) PAULINO MUNOZ-ALVARADO, ) ) Defendant. )

ORDER

Before the Court is Defendant Paulino Munoz-Alvarado’s Motion to Vacate, Set Aside or Correct a Federal Sentence Pursuant to

[Doc. No. 95]. The United States has filed a response in opposition [Doc. No. 97], and Defendant has replied [Doc. No. 99]. For the reasons stated herein, the Court finds that no hearing is needed and that the motion should be denied.1 FACTUAL AND PROCEDURAL HISTORY Defendant was charged in a two-count indictment with 1) possession with intent to distribute 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of

(a)(1); and 2) knowingly and intentionally possessing a firearm during and in relation to a drug trafficking crime, in violation of

(c)(1)(A). [Doc. No. 1]. Defendant pled guilty to both counts

1 No evidentiary hearing is needed where the existing record conclusively shows Defendant is not entitled to relief. See United States v. Lopez,

(10th Cir. 1996);

(b). on September 29, 2015. [Doc. Nos. 52–54]. On May 10, 2016, the Court sentenced him to 120 months imprisonment on Count One and 60 months on Count Two, with the sentences to run consecutively. [Doc. No. 79].

Defendant filed the instant motion on November 4, 2019. Defendant seeks to vacate his conviction and sentence on Count Two based on the United States Supreme Court’s decision in United States v. Davis,

(2019). The United States contends that the Davis decision is not applicable because Defendant’s predicate offense was a drug trafficking crime, and the Supreme Court only examined the constitutionality of the

residual clause’s definition of a crime of violence in

(c)(3)(B). DISCUSSION I. The Supreme Court in Davis held that the definition of a crime of violence in the residual clause of § 924(c)(3)(B) is unconstitutionally vague.

Section 924(c) of Title 18 of the United States Code authorizes enhanced criminal penalties for possessing a firearm during and in relation to a drug trafficking crime or a crime of violence.

(c)(1)(A). The statute defines a “drug trafficking crime” as a “felony punishable under the Controlled Substances Act,

et seq., the Controlled Substances Import and Export Act,

et seq., or chapter 705 of title 46.”

(c)(2). The statute defines the term “crime of violence” in two subparts—the first known as the elements clause (subparagraph (A)), and the second the residual clause (subparagraph (B)).

§ 924(c)(3). According to § 924(c)(3), a crime of violence is a felony offense that: (A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that 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.

Id. Respondents in Davis were convicted by a jury of brandishing firearms in connection with their Hobbs Act robberies and in violation of § 924(c). Davis,

. On appeal, both argued that the residual clause of § 924(c) was unconstitutionally vague. Id. at 2325. The Supreme Court granted certiorari to resolve the dispute among the lower courts concerning the constitutionality of the clause. Id. Ultimately, the Court agreed with the Fifth Circuit that § 924(c)(3)(B)—the residual clause defining a crime of violence for purposes of the heightened penalties—was unconstitutionally vague. Id. at 2336. II. The Supreme Court’s holding in Davis has no effect on Defendant’s § 924(c) conviction for possessing a firearm during and in relation to a drug trafficking crime.

The Supreme Court’s holding in Davis concerned only the constitutionality of the residual clause’s definition of a crime of violence. It did not touch on the definition of a crime of violence in the elements subpart of § 924(c)(3)(A) or the definition of a drug trafficking crime in § 924(c)(2). Defendant was convicted in Count Two of possessing a firearm during and in relation to his drug trafficking crime in Count One—possession with intent to distribute 500 grams or more of a mixture containing a detectable amount of methamphetamine. Thus, the Supreme Court’s ruling in Davis has no bearing on Defendant’s convictions. CONCLUSION For the foregoing reasons, Defendant’s Motion to Vacate, Set Aside or Correct a Federal Sentence Pursuant to

[Doc. No. 95] is DENIED. Having reached that conclusion, Rule 11(a) of the Rules Governing Section 2255 Proceedings requires the Court to determine whether a certificate of appealability should issue. To obtain a certificate of appealability, Defendant must make a substantial showing of the denial of a constitutional right. See

(c)(2). Defendant can make such a showing by demonstrating that the issues he seeks to raise are deserving of further proceedings, debatable among jurists of reason, or subject to a different resolution on appeal. See Slack v. McDaniel,

(2000). Defendant has failed to do so in this case. Accordingly, the Court concludes that a certificate of appealability should not issue. IT IS SO ORDERED this 26" day of February 2020.

Md, Q: yh dy Q: ya i, TIMOTHY D. DeGIUSTI Chief United States District Judge