Lopez v. United States

Background

Ronny Lopez, who was incarcerated, sought relief under 28 U.S.C. § 2255, a procedure allowing a federal prisoner to challenge a conviction or sentence in the sentencing court. His challenge concerned his conviction under 18 U.S.C. § 924(c), which prohibits using or possessing a firearm in furtherance of certain crimes.

The indictment charged Lopez with conspiracy to commit Hobbs Act robbery, conspiracy to distribute narcotics, and carrying and possessing a firearm in furtherance of both conspiracies. Lopez pleaded guilty to the robbery-conspiracy count and the firearm count. The court later sentenced him to 120 months in prison: 60 months on the robbery-conspiracy count and 60 consecutive months on the firearm count.

Lopez argued that the Supreme Court’s decision in Davis and the Second Circuit’s decision in Barrett established that conspiracy to commit Hobbs Act robbery could no longer serve as the required crime-of-violence predicate for a § 924(c) conviction. He therefore asked the court to vacate the firearm conviction and sentence. The government opposed the motion.

Legal standard

A prisoner generally cannot use a collateral challenge under § 2255 to raise a claim that could have been raised on direct appeal unless the prisoner shows both cause for the failure to raise it and actual prejudice, meaning a reasonable probability that the alleged error affected the result. A prisoner may alternatively overcome that procedural bar by showing actual innocence—factual innocence, not merely that the conviction was legally insufficient.

Court’s reasoning

The court acknowledged that Davis and Barrett invalidated conspiracy to commit Hobbs Act robbery as a § 924(c) predicate. It nevertheless held that Lopez’s claim was procedurally barred.

First, the court found that Lopez had not shown cause for failing to raise the claim earlier. The fact that Davis had not yet been decided was not enough. The court reasoned that earlier decisions, including Johnson and Dimaya, gave Lopez the tools to develop a constitutional challenge before the court entered judgment in his case.

Second, the court found no prejudice. The firearm count had identified the narcotics conspiracy as an alternative predicate. During his plea hearing, Lopez admitted that he agreed with others to rob people he believed were drug dealers and that someone had a firearm. The presentence report, to which neither side objected, stated that Lopez expected to receive a share of the stolen narcotics and was expected to sell a co-conspirator’s share. Relying on the Second Circuit’s decision in Dussard, the court concluded that Lopez would have had little genuine hope of avoiding conviction for the narcotics conspiracy at trial and had not shown a reasonable probability that the outcome would have been different.

The court also held that Lopez had not shown actual innocence of the firearm count based on the narcotics conspiracy. Considering the plea-hearing admission and the presentence report, the court concluded that the record indicated Lopez used a firearm in furtherance of a narcotics conspiracy, which was sufficient to support the § 924(c) conviction.

Disposition

The court denied Lopez’s motion under § 2255. It declined to issue a certificate of appealability because Lopez had not made the required substantial showing that a constitutional right was denied. It also certified that any appeal would not be taken in good faith and ruled that Lopez could not proceed without paying the required filing fee. The court directed the clerk to terminate the motions and close the related civil case.