Nothing in Count II alleges facts that Claimant or his employees knowingly made such false statements or representation in the records. Rather, the Complaint merely provides a conclusory allegation that the five firearms were “involved in a knowing violation of 18 U.S.C. § 924 (a)(1)(A).” ¶ 34.

21 History Category VI results in a guideline range of 110 to 137 months’ imprisonment. A5 consecutive sentence of 84 months for Count Two (i.e., Using and Carrying a Firearm During and in Relation to a Crime of Violence) pursuant to 18 U.S.C. § 924(c)(1)(A)(ii) and U.S.S.G. § 5G1.2 results in a sentencing range of 194 to 221 months. III. CONCLUSION For the reasons set forth herein, the petitioner’s motion to vacate, set aside and correct his sentence should be denied.

The law authorizes a sentence for David L. King of not more than ten years imprisonment. 18 U.S.C. §924(a)(2). Since David L. King is serving a sentence considerably higher than due process and the applicable law allow, he is entitled to relief under 28 U.S.C. §2255.

. Escape is not an enumerated crime in 18 U.S.C. § 924(e)(2). Therefore, United States v. Johnson applies to Mr. Lucero’s case.

17 In pertinent part, the ACCA residual clause defines a “violent felony” as an offense that “oth- erwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Section 924(c)(3)(B) defines a crime of violence as one that “by its na- ture, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

ase 1:16-cv-00675-MCA-KBM Document 1 Filed 06/24/16 Page 19 of 33 Attachment A District Court’s Judgment Case 1:16-cv-00675-MCA-KBM Document 1 Filed 06/24/16 Page 20 of 33 AO 245B (Rev 12/03) Criminal Judgment Sheet 1 UNITED STATES DISTRICT COURT District of New Mexico Judgment in a Criminal CaseUNITED STATES OF AMERICA V. (For Offenses Committed On or After November 1, 1987) Case Number: 1:05CR01618-001MCA USM Number: 31677-051 Defense Attorney: Thomas Jameson (appointed) Daniel Rojas THE DEFENDANT: pleaded guilty to count(s) SIII and SIV of Redacted Indictmentc    pleaded nolo contendere to count(s) d    after a plea of not guilty was found guilty on count(s) d    The defendant is adjudicated guilty of these offenses: Count Number(s) Offense EndedNature of OffenseTitle and Section SIII 07/01/2005 07/01/2005 Interference with Commerce by Threats of Violence Using and Carrying a Firearm During and in Relation to a Crime of Violence 18 U.S.C. Sec. 1951(a)(1) 18 U.S.C. Sec. 924(c)(1)(A)(ii) SIV The defendant is sentenced as specified in pages 2 through 5 of this judgment. The sentence is imposed under the Sentencing Reform Act of 1984.

Congress acted well within its constitutional authority in enacting both of the civil rights offenses with which Defendant has been charged. Those crimes also qualify as crimes of violence under both of the definitions of that term that are contained in 18 U.S.C. § 924(c). Consequently, Defendant should be required to appear before a jury of his peers on the charges that the grand jury duly considered and returned in this case.

This Court should do likewise. Conclusion In sum, for the above reasons there is no material difference between 18 U.S.C. § 924(c)(3)(B) and the unconstitutionally vague residual clause in 18 U.S.C. § 924(e)(2)(B)(ii). Respectfully submitted, Date: July 15, 2016 /s/ Bjorn Lange Bjorn Lange (N.H. Bar No. 1426) Assistant Federal Public Defender 22 Bridge Street, 3rd Floor Concord, NH 03301 Tel. (603) 226-7360 Bjorn_Lange@fd.org Case 1:16-cv-00235-PB Document 8 Filed 07/15/16 Page 17 of 1872 7 18 /s/ Jeffrey S. Levin Jeffrey S. Levin (N.H. Bar No. 12901) Assistant Federal Public Defender 22 Bridge Street, 3rd floor Concord, NH 03301 Tel. (603) 226-7360 Jeff_Levin@fd.org /s/ Jonathan R. Saxe Jonathan R. Saxe (N.H. Bar No. 8226) Assistant Federal Public Defender 22 Bridge Street, 3rd Floor Concord, NH 03301 Tel. (603) 226-7360 Jonathan_Saxe@fd.org /s/ Michael J. Iacopino Michael J. Iacopino (N.H. Bar No. 1233) Brennan, Lenehan, Iacopino & Hickey 85 Brook Street Manchester, NH 03104-3605 Tel. (603)668-8300 miacopino@brenna

Following Johnson, Mr. Raymond can qualify as an armed career criminal only if his prior New Mexico conviction for burglary of a dwelling has an element of use of force against the person of another or is an enumerated offense, namely burglary, arson or extortion, or involves use of explosives. 18 U.S.C. § 924(e)(2)(B). The New Mexico burglary statute states: Burglary consists of the unauthorized entry of any vehicle, watercraft, aircraft, dwelling or other structure, movable or immovable, with the intent to commit any felony or theft therein.

Mr. Saavedra’s 180 month sentence was imposed in violation of the Constitution because it was predicated on the residual clause. 18 U.S.C § 924(e)(2)(B)(ii). The residual clause is “unconstitutionally vague” and “imposing an increased sentence under the residual clause . . . violates the Constitution’s guarantee of due process.”