Ortiz v. United States

Background

A jury convicted Anthony Ortiz on March 1, 1999, of distributing and possessing crack cocaine with intent to distribute. The sentencing court found that Ortiz was a career offender under U.S.S.G. § 4B1.1 because of prior New York felony convictions for first-degree robbery, criminal sale of narcotics, and attempted third-degree robbery. The mandatory Sentencing Guidelines produced a range of 262 to 327 months, and Judge Michael B. Mukasey imposed a 262-month prison sentence.

Ortiz’s conviction and sentence were affirmed on direct appeal, and the Supreme Court denied review. He filed an earlier sentence challenge in 2001, which Judge Mukasey denied. In June 2016, Ortiz filed the present challenge under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to seek correction of a sentence imposed in violation of federal law or the Constitution. He relied on Johnson v. United States, in which the Supreme Court held that the Armed Career Criminal Act’s residual clause was unconstitutionally vague. The Court of Appeals later authorized Ortiz to file this successive § 2255 motion, and counsel supplemented it.

Timeliness ruling

The court held that the motion was untimely. Section 2255 generally imposes a one-year filing period, including a period running from the date on which the Supreme Court newly recognizes a right and makes it retroactively applicable. Ortiz filed within one year after Johnson, and Johnson was retroactive, but the court relied on Court of Appeals precedent holding that Johnson did not recognize a constitutional right not to be sentenced under the residual clause of the pre-Booker career-offender Guidelines. Therefore, Johnson did not excuse Ortiz from the one-year limitation period. His motion was filed more than fifteen years after his conviction became final.

Alternative merits ruling

The court nevertheless considered the substance of Ortiz’s argument in the alternative. Ortiz argued that his first-degree robbery and attempted third-degree robbery convictions qualified as crimes of violence only under the Guidelines’ residual clause, which he contended was unconstitutionally vague after Johnson.

The court rejected that argument. The Guidelines’ force clause covers offenses that have as an element the use, attempted use, or threatened use of physical force against another person. New York defines robbery as forcibly taking property while using or threatening the immediate use of physical force. The court relied on Court of Appeals precedent holding that third-degree robbery under New York law categorically qualifies as a crime of violence under the force clause. It further concluded that the attempted nature of Ortiz’s third-degree robbery conviction did not change that result. Because first-degree robbery includes the same forcible-stealing definition plus an additional element involving serious physical injury or a weapon, the court concluded that the first-degree conviction also qualified under the force clause.

Disposition

The court held that Ortiz’s motion was untimely and that, even if timely, his two robbery convictions independently supported his career-offender status without relying on the residual clause. The court therefore denied Ortiz’s § 2255 motion. It directed the Clerk to mark the civil action closed, deny all pending motions as moot, and close the open motion in the related criminal case.