Manglona denies poker robber’s 4th motion to set aside prison sentence

The U.S. District Court for the NMI has denied a motion to set aside the 120-month prison sentence imposed on John Gerald Castro Pangelinan, a career offender currently in federal prison for Hobbs Act robbery, the use of a firearm in the commission of a crime of violence, and escape.

In an order Friday, Chief Judge Ramona V. Manglona ruled that attempted Hobbs Act robbery is a crime of violence under the elements clause.

Hobbs Act is a federal law that prohibits robbery or extortion, or attempted robbery or extortion, that affects interstate or foreign commerce.

Manglona said because Pangelinan’s section 924(c) conviction was equally predicated on this offense, the U.S. Supreme Court’s decision in U.S. vs. Davis case does not invalidate it. Section 924 (c) refers to the statute on discharging a firearm during a crime of violence.

In the Davis case, the Supreme Court struck down the residual clause of the firearms statute as unconstitutionally vague.

Manglona said the residual clause’s definition of a crime of violence was consequently invalid because “the imposition of criminal punishment can’t be made to depend on a judge’s estimation of the degree of risk posed by a crime.”

Manglona said the Supreme Court’s ruling in U.S. vs. Davis overturned the Ninth Circuit’s 26-year-old decision in U.S. vs. Mendez case that conspiracy to commit Hobbs Act robbery is a predicate crime of violence under the residual clause.

Now, the judge said, to predicate a section 924 (c) firearm conviction, an offense must categorically satisfy the elements clause’s definition of a crime of violence.

She directed the clerk of court to close this case.

Pangelinan pleaded guilty in March 2005. On June 3, 2005, the court sentenced him to 169 months for Hobbs Act robbery conspiracy, and 120 months for using and carrying a firearm during a crime of violence, for a total of 289 months.

Pangelinan did not directly appeal any aspect of his conviction or sentence. He, however, collaterally attacked his sentence three times previously. The court denied relief each time. Last Nov. 20, the U.S. Court of Appeals for the Ninth Circuit authorized Pangelinan to file this fourth motion.

Pangelinan then filed a pro se (without a lawyer) motion to vacate, set aside, or correct his sentence by challenging the 120-month sentence—the sole count for which he now remains incarcerated—in light of the recent U.S. Supreme Court decision in U.S. vs. Davis. The District Court subsequently appointed a counsel for him.

Pangelinan asserted that the Supreme Court’s ruling in the Davis case invalidated his conviction for discharging a firearm during a crime of violence.

In response, the U.S. government argued that Pangelinan’s petition is both meritless and procedurally barred.

In denying the defendant’s motion, Manglona said the Mendez ruling was controlling precedent when the District Court sentenced Pangelinan in 2005. Thus, Manglona said, at that time, the first count Pangelinan pleaded guilty to—conspiracy to commit Hobbs Act robbery—was a predicate crime of violence under the residual clause. Because the Davis ruling struck down the residual clause and applies retroactively, this previous justification for Pangelinan’s section 924 (c) conviction is no longer valid, Manglona said.

Pangelinan argued that the Davis ruling created a newly recognized right requiring the court to vacate his section 924 (c) firearm conviction.

The U.S. government presented two arguments against granting Pangelinan’s petition. First, the government claims that Pangelinan’s petition is procedurally barred as he did not file a direct appeal after sentencing. Second, the government argues that count 2 of the indictment—attempted Hobbs Act robbery—also predicated Pangelinan’s firearm conviction and remains a crime of violence under the elements clause after Davis.

Manglona said because the Davis ruling overturned the longstanding and widespread practice of treating conspiracy to commit Hobbs Act robbery as a predicate crime of violence, it established a new constitutional claim that was not reasonably available to Pangelinan at his 2005 sentencing. Therefore, Manglona said, Pangelinan had cause for failing to appeal his original sentence.

Manglona noted that the most recent development occurred just days ago, when a Ninth Circuit panel issued its decision in U.S. vs. Dominguez. In a 2-1 vote, the panel held that attempted Hobbs Act robbery is a crime of violence under the elements clause.

Manglona said the majority opinion states that they agree with the Seventh and Eleventh Circuits that, when a substantive offense would be a crime of violence under a statute, an attempt to commit that offense is also a crime of violence.

Manglona said she agreed with Ninth Circuit Judge Jacqueline Nguyen, who dissented, that attempted Hobbs Act robbery can be committed without the attempted use or threatened use of violence force. Nevertheless, Manglona said, as of today it is the panel’s majority opinion, not Nguyen’s dissent, that binds this court.

According to court records, shortly after midnight on April 29, 2004, Pangelinan and two accomplices stole a Toyota Camry car and agreed to rob a Saipan poker machine parlor. The three men then drove to the poker establishment and Pangelinan went in armed with a rifle. Inside the parlor, a security guard and cashier were behind the window of a cashier’s booth.

Brandishing his rifle, Pangelinan ordered the security guard to open the door to the cashier’s booth. The guard gripped the inner doorknob, attempting to comply. Pangelinan, however, fired his gun at the outer doorknob and shot the guard in the hand. Pangelinan next fired a second round at the door, which struck the cashier in the arm. Pangelinan went back to the stolen car and fled the scene.

Police officers chased the car, but the trio evaded their pursuers and abandoned the vehicle in the jungle.

On May 1, 2004, Pangelinan surrendered to police after learning he was wanted in connection with the attempted robbery. Pangelinan was denied bail but managed to escape from custody on Aug. 31, 2004. He was apprehended on Sept. 7, 2004.