United States v. Joshua Ramirez , 652 F. App'x 299 ( 2016 )

Case: 14-51053 Document: 00513552753 Page: 1 Date Filed: 06/17/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-51053
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 17, 2016
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
JOSHUA ZUNIGA RAMIREZ, also known as Joshua Ramirez, also known as
Dboy,
Defendant-Appellant
Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:14-CV-241
USDC No. 5:11-CR-785-1
Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
Joshua Zuniga Ramirez, federal prisoner # 86965-280, appeals the
district court’s denial of his 28 U.S.C. § 2255 motion challenging his sentence
of 180 months of imprisonment; the sentence was imposed following his guilty
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
Case: 14-51053 Document: 00513552753 Page: 2 Date Filed: 06/17/2016
No. 14-51053
plea conviction of being a felon in possession of a firearm. See 18 U.S.C.
§§ 922(g), 924(e)(1). We granted Ramirez a certificate of appealability. 1
We review the denial of § 2255 relief de novo. United States v. Flores-
Ochoa, 139 F.3d 1022, 1023 (5th Cir. 1998). Ramirez argues that his sentence,
based on the application of § 924(e)(1) for having three prior convictions of
violent felonies, is unconstitutional in light of the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015), which the Supreme Court
held to be retroactive to cases on collateral review in Welch v. United States,
136 S. Ct. 1257, 1268 (2016).
The record indicates that Ramirez’s prior conviction for possessing a
deadly weapon in a penal institution was treated as a violent felony under the
residual clause of § 924(e)(2)(B)(ii). On the present record and in light of
Johnson, Ramirez’s sentence is unconstitutional and he is entitled to § 2255
relief. See § 2255; Welch, 136 S. Ct. at 1268; Johnson, 135 S. Ct. at 2557-58,
2563. Accordingly, we VACATE the district court’s order and REMAND for
further proceedings consistent with this opinion. We express no opinion
regarding the district court’s ultimate sentencing decision.
The Government’s motions for summary affirmance and for an extension
of time in which to file a brief are DENIED, but further briefing is unnecessary.
See Welch, 136 S. Ct. at 1265, 1268. This resolution renders all outstanding
motions moot.
1We have jurisdiction to address only the issue specified in the grant of the certificate
of appealability. See United States v. Daniels, 588 F.3d 835, 836 n.1 (5th Cir. 2009). To the
extent that Ramirez raises other issues, we do not address them. See id.2