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Silva v. Lariva

United States District Court, W.D. Wisconsin

January 6, 2017

NATIVIDAD SILVA, JR., Petitioner,
v.
LEANN LARIVA, Warden, Federal Medical Center - Rochester, [1] Respondent.

          OPINION AND ORDER

          WILLIAM M. CONLEY DISTRICT JUDGE

         Petitioner Natividad Silva, Jr., seeks habeas corpus relief under 28 U.S.C. § 2241 from his continued confinement at the Federal Medical Center in Rochester, Minnesota, under an enhanced sentence for successive firearms convictions under 18 U.S.C. § 924(c). United States v. Silva, 92-cr-342 (N.D. Tex.). The government has filed an answer and both parties have submitted briefing. After considering all of the pleadings and exhibits, the court concludes that the petition must be denied for reasons set forth below.

         PROCEDURAL HISTORY

         Because Silva has made multiple attempts to challenge his conviction and sentence, an overview of the case's procedural history is necessary before addressing his challenge here.

         A. Underlying Charges, Guilty Plea and Sentencing

         On July 30, 1992, a grand jury in the Dallas Division of the Northern District of Texas returned a six-count indictment against Silva. The charges stemmed from a series of armored-car robberies in and around the Dallas metropolitan area. (Dkt. # 10, Exh. 4, Rearraignment Trans. at 7-10.) Counts one, two, three and five charged Silva with robbery affecting commerce. Count four charged Silva with using a firearm during a crime of violence, while count six charged Silva with using a firearm during a crime of violence as a second or successive offense.

         On November 3, 1992, Silva pled guilty to all six counts of the indictment. (Dkt. # 10, Exh. 4, Rearraignment Trans. at 3.) The undisputed facts underlying the charged offenses are as follows:

On June 8, 1992, the defendant [Silva] robbed Michael Rodriguez, a guard for Loomis Armed, Inc. at gunpoint as he was exiting the Home Depot store, 1975 W. Northwest Highway, Dallas, Texas. The defendant took Mr. Rodriguez' gun and a money bag that contained approximately $43, 508.86, including $15, 101 in cash.
On June 17, 1992, Silva robbed Robert Robles, a guard employed by Loomis Armed, Inc., at gunpoint as he was exiting the Home Depot store, 1441 Trinity Mills Roads, Carrollton, Texas.
On July 6, 1992, Silva robbed Charles Wallace, a guard for Loomis Armed, Inc., at gunpoint as he was entering DFW Check Cashiers Store, 102 West Main Street, Grand Prairie, Texas. The defendant took Mr. Wallace's gun but did not receive any money because the robbery took place before the guard entered the store.
On July 6, 1992, approximately one hour after the robbery at DFW Check Cashiers Store, the defendant robbed Jose Garza, a guard for Armored Transport of Texas, at gunpoint as he was leaving the K-Mart Store, Cedar Hill, Texas. The defendant took Mr. Garza's gun and approximately $45, 980, including $19, 000 in cash.

(Dkt. # 11, Exh. 3, Presentence Report at ¶¶ 2-5.) Silva admitted that he was the gunman during each of the robberies. Silva's co-defendant and brother, Jesus Silva, confessed to being the driver during the two robberies on July 6, 1992.

         Silva's sentencing hearing took place on January 3, 1993. During that proceeding, the district court sentenced Silva to concurrent 97-month terms of imprisonment for the robbery charges lodged in counts one, two, three and five. The district court imposed a consecutive 60-month term of imprisonment on the first firearms offense alleged in count four, for carrying a firearm during a crime of violence in violation of 18 U.S.C. § 924(c). The district court then imposed a consecutive 20-year prison sentence on the second firearm offense outlined in count six, also for using a deadly weapon during a crime of violence in violation of § 924(c). In doing so, the district court expressly found that the conviction in count six was subject to an enhancement found in § 924(c) for “second or successive” convictions for the use of a deadly weapon during a crime of violence, relying on the holding of the Fifth Circuit Court of Appeals in United States v. Deal, 954 F.2d 262 (5th Cir. 1992). (Dkt. # 10, Exh. 4A, Sentencing Trans. at 32-33.)

         In Deal, which also involved a string of armed robberies, the Fifth Circuit ruled that a second or successive conviction for use of a firearm during a crime of violence can result from the same indictment as the first such conviction. Deal, 954 F.2d at 263. Specifically, where separate counts relate to bank robberies committed on different occasions, the court held that the enhancement applies even when the second or successive convictions are part of the same indictment. Id. Any doubt as to this reading of the statute was removed after the United States Supreme Court granted certiorari review and similarly held that a “second or subsequent conviction” as used in § 924(c) can arise in a single proceeding when multiple offenses are proved. See Deal v. United ...


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