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Aquil v. Butler

United States District Court, E.D. Kentucky, Southern Division, London

April 27, 2015

SANDRA BUTLER, Warden, Respondent.


DANNY C. REEVES, District Judge.

Julio G. Aquil[1] is an inmate confined by the Bureau of Prisons ("BOP") at the Federal Correctional Institution in Manchester, Kentucky. Proceeding without counsel, Aquil has filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. [Record No. 1] Aquil challenges his firearm conviction and the 60-month consecutive portion of his sentence under Rosemond v. United States, ___ U.S. ___, 134 S.Ct. 1240 (2014), which holds that, to aid and abet a firearm offense in violation of 18 U.S.C. § 924(c), a defendant must have advance knowledge that the firearm will be used or carried.

In conducting an initial review of habeas petitions under 28 U.S.C. § 2243, the Court must deny the relief sought "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions pursuant to Rule 1(b)). The Court evaluates Aquil's § 2241 petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003), overruled on other grounds, Jones v. Bock, 549 U.S. 199 (2007). The Court accepts Aquil's factual allegations as true and construes his legal claims in his favor at this stage of the proceedings. However, following review, Aquil's § 2241 petition will be denied.


Aquil and co-Defendant Jose Nunez-Hernandez were charged in the United States District Court for the District of Montana with multiple counts of conspiracy to transport and distribute drugs from Los Angeles, California to Billings, Montana. United States v. Julio Aquil, et al., No. 1:97-CR-45-SPW-5 (D. Mont. 1997).[2] Aquil and Nunez-Hernandez were both convicted in August 1998. Aquil was convicted of conspiracy to sell, distribute or dispense controlled substances (methamphetamine) in violation of 21 U.S.C. §§ 841(a)(1); using or carrying a gun during the commission of a crime of violence or a drug trafficking crime, in violation of 18 U.S.C. § 924(c); and aiding and abetting in violation of 18 U.S.C. § 2.[3] [ Id., Record No. 296, therein]

On December 10, 1998, the district court sentenced Aquil to a 480-month (40-year) prison term, comprised of a 420-month sentence on Counts 1, 2, and 4; a concurrent 97-month sentence on Counts 8 and 9; and a consecutive 60-month sentence on Count 5, which charged Aquil with the § 924(c) offense for aiding and abetting the use or carrying of a gun during the commission of a crime of violence or a drug trafficking crime. [ Id., Record No. 370, therein] Aquil conviction was affirmed on appeal by the United States Court of Appeals for the Ninth Circuit. United States v. Julio Aquil, No. 98-30336, 202 F.3d 279 (9th Cir. Nov. 10, 1999) (unpublished table decision).

On January 19, 2005, Aquil filed his first motion to set aside his sentence under 28 U.S.C. § 2255. [ See Aquil criminal case, Record No. 503, therein.][4] On March 16, 2005, the district court denied this motion. [ Id., Record No. 504, therein] The court's order is not electronically accessible, but given the date on which Aquil filed his first § 2255 motion (January 19, 2005), it appears that the district court denied the motion as untimely under 28 U.S.C. § 2255(f).[5]

On November 26, 2007, Aquil filed a "Motion for Relief from Judgment and Dismissal of the Defective Indictment for Lack of Subject Matter, Jurisdiction and Fraud, pursuant to Federal Rules of Civil Procedure Rule 60(b)." [ Id., Record No. 522, therein] On March 7, 2008, the district court denied Aquil's Rule 60(b) motion. [ Id., Record No. 525, therein] It concluded that, because Aquil was merely attempting to re-litigate the merits of his conviction and sentence, his Rule 60(b) motion was nothing more than a disguised second or successive § 2255 motion, and that Aquil had not obtained the United States Court of Appeals for the Ninth Circuit's permission to file a second or successive § 2255 motion.[6] [ Id. ]

Aquil appealed the denial of his Rule 60(b) motion but the Ninth Circuit summarily denied Aquil request for a Certificate of Appealability. [ Id., Record Nos. 526, 545; see also United States v. Julio Aquil, No. 08-35300 (9th Cir. Apr. 29, 2009)] Aquil's projected release date from federal custody is December 16, 2037. See (last visited on April 20, 2015).


Aquil alleges that, under the Supreme Court's holding in Rosemond, he is not guilty of aiding and abetting a firearm offense under 18 U.S.C. § 2, and that "vacating his convictions is the proper remedy." [Record No. 1, p. 5] To the extent that Aquil invokes the holding in Rosemond, he appears to be challenging only part of his sentence ( i.e., his consecutive 60-month sentence imposed for aiding and abetting the use of a firearm during the commission of a violent crime or a drug trafficking crime in violation of 18 U.S.C. § 924(c)). In Rosemond, the Supreme Court explained that "[a]n active participant in a drug transaction has the intent needed to aid and abet a § 924(c) violation when he knows that one of his confederates will carry a gun." Rosemond, 134 S.Ct. at 1249. A conviction for aidingand-abetting "requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime." Id. at 1248. Further, "the intent must go to the specific and entire crime charged." Id. For example, in Rosemond, intent was required for the full scope of a § 924(c) violation (predicate drug crime plus gun use). Id. The Court explained, "[t]o aid and abet a crime, a defendant must not just in some sort associate himself with the venture, ' but also participate in it as in something that he wishes to bring about' and seek by his action to make it succeed.'" Id. (quoting Nye & Nissen v. United States, 336 U.S. 613, 619 (1949)).

Aquil argues that the evidence produced at trial against him was inadequate to support his § 924(c) firearm conviction. He contends that the evidence did not show that he knew in advance that his cohorts would use a gun while committing drug trafficking crimes. Based on this alleged evidentiary deficiency, Aquil argues that his criminal conduct did not satisfy Rosemond 's requirements for an aiding and abetting conviction under § 924(c). Consequently, Aquil claims that he was denied due process of law as guaranteed by the Fifth Amendment to the United States Constitution. He seeks an order vacating his consecutive 60-month sentence on the § 924(c) firearm conviction, and directing the BOP to immediately release him. [Record No. 1, p. 11]


As a general rule, 28 U.S.C. § 2255 provides the proper avenue to challenge a federal conviction or sentence. Conversely, a federal prisoner may file a § 2241 petition if he seeks to challenge the execution of his sentence ( i.e., the BOP's calculation of sentence credits or other issues affecting the length of his sentence). See United States v. Peterman, 249 F.3d 458, 461 (6th Cir. 2001); see also Charles v. Chandler, 180 F.3d 753, 755-56 (6th Cir. 1999). In short, 28 U.S.C. § 2255 provides the primary method for federal prisoners seeking relief from an unlawful conviction or sentence, not § 2241. See Capaldi v. Pontesso, 135 F.3d 1122, 1123 (6th Cir. 2003). Here, Aquil is not challenging the execution of his sentence, such as the computation of sentence credits or parole eligibility ( i.e., issues which fall under the ambit of § 2241). Rather, he contends that under Rosemond his consecutive § 924(c) firearm conviction, which comprises 60 months of his total 480-month sentence, ...

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