United States of America v. Jose Ortega

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE ORTEGA,
Defendant-Appellant.
No. 17-56879
D.C. Nos. 3:16-cv-01622-GPC
3:12-cr-00236-GPC-21
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gonzalo P. Curiel, District Judge, Presiding
Argued and Submitted April 12, 2019
Pasadena, California
Before: PAEZ and CLIFTON, Circuit Judges, and ENGLAND,** District Judge.
Jose Ortega (“Defendant”) appeals from the district court’s denial of his
motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.
Defendant pleaded guilty to one count of violating 18 U.S.C. § 924(c) for use of a
firearm in furtherance of a drug trafficking crime (“Count 7”), one count of
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Morrison C. England, Jr., United States District Judge
for the Eastern District of California, sitting by designation.
FILED
MAY 6 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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conspiracy to distribute methamphetamine and cocaine in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A)(vii), 841(b)(1)(B)(ii), and 846 (“Count 2”), as well as
one count of conspiracy under the Racketeer Influenced and Corrupt Organizations
Act (“RICO”) in violation of 18 U.S.C. § 1962(d) (“Count 1”). After Defendant’s
conviction, the Supreme Court held in Johnson v. United States, 135 S. Ct. 2551
(2015), that the “residual clause” concerning crimes of violence within the Armed
Career Criminal Act of 1984, 18 U.S.C. § 924(e) (“ACCA”) was unconstitutionally
vague. Defendant thereafter filed a § 2255 motion asking that the court vacate and
correct his Count 7 sentence on the basis that § 924(c) contains a residual clause
concerning crimes of violence identical to the ACCA. We have jurisdiction under
28 U.S.C. § 2253 and 28 U.S.C. § 1291, and we affirm.
Defendant contends, in part, that: (1) under Johnson, § 924(c)’s residual
clause is unconstitutionally vague, and as such, his § 1962(d) RICO conspiracy
conviction cannot serve as a predicate “crime of violence” for a § 924(c) offense;
(2) because § 1962(d) is overbroad and indivisible under the categorical approach,
it likewise cannot serve as a predicate “drug trafficking offense” for his § 924(c)
conviction; and (3) the district court erroneously applied the modified categorical
approach to determine that the factual basis of Defendant’s § 1962(d) conviction
involved a drug trafficking crime.
Application of the categorical approach was unnecessary because the district

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court permissibly reviewed “the record before the sentencing court” to determine
that Count 7’s predicate offense related to drug trafficking, not a crime of violence.
United States v. Geozos, 870 F.3d 890, 896 (9th Cir. 2017). Under Geozos, “a
claim does not ‘rely on’ [Johnson] if it is possible to conclude, using both the
record before the sentencing court and the relevant background legal environment
at the time of sentencing, that the sentencing court’s [sentence] determination did
not rest on the residual clause.” Id. On this record, the district court properly
found that Defendant’s § 924(c) conviction rested on drug trafficking, not a crime
of violence. Accordingly, it was unnecessary to determine Johnson’s effect on §
924(c)’s residual clause or to apply the categorical approach to § 1962(d).
AFFIRMED.

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