Time-barred

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7^th Circuit Court of Appeals

Case Name: George R. Sotelo v. United States of America

Case No.: 16-4144

Officials: RIPPLE, KANNE, and ROVNER, Circuit Judges.

Focus: Time-barred

In 1995, George R. Sotelo was convicted of three counts of mailing extortionate communications, 18 U.S.C. § 876(b), and three counts of mailing threatening communications, 18 U.S.C. § 876(c) 1 . After concluding that Sotelo was a career offender under U.S.S.G. § 4B1.1, which increases the punishment for a “crime of violence” committed after the defendant has two prior qualifying convictions, the district court sentenced him to a term of 262 months’ imprisonment. Sotelo neither appealed his sentence nor filed a collateral attack under 28 U.S.C. § 2255 within the one-year limitations period set forth in § 2255(f). But in 2016, he filed a § 2255 motion after the Supreme Court in Johnson v. United States, 135 S. Ct. 2551 (2015), invalidated as unconstitutionally vague a portion of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), containing the same language as a portion of § 4B1.2 of the Guidelines (defining “crime of violence” in § 4B1.1). Although the government argued that Sotelo’s challenge did not fit within the exception in § 2255(f)(3) for motions filed outside of the one-year limitations period and was therefore untimely, the district court denied Sotelo’s motion on the merits. As explained below, we affirm the district court’s denial of Sotelo’s motion, not on the merits, but because Johnson does not open the door to Sotelo’s claim under § 2255(f)(3).

Affirmed

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.