Nunez-Rosas v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Roger T. Benitez on 9/27/2017.(knb)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 11 ELIAS ROSAS-NUNEZ AKA JOSE MANUEL NUNEZ-ROSAS, Movant, 12 13 14 Case No.: 3:16-cv-01415-BEN 3:14-cr-01255-BEN ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 v. UNITED STATES OF AMERICA, Respondent. 15 16 17 Movant, Elias Rosas-Nunez, also known as Jose Manuel Nunez-Rosas, proceeding 18 pro se, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. 19 § 2255. Respondent, the United States, filed a response, opposing the motion. For the 20 reasons set forth below, this Court DENIES Movant’s Motion. 21 BACKGROUND 22 On May 1, 2014, Movant waived indictment and was charged by a criminal 23 information with attempted reentry of a previously deported alien in violation of 8 U.S.C. 24 § 1326. (Docket Nos. 9, 10).1 Movant pleaded guilty to the charged offense. (Docket 25 Nos. 40, 44). The plea agreement included a waiver of appeal and collateral attack, 26 “except for a post-conviction collateral attack based on a claim of ineffective assistance 27 28 1 All docket citations refer to the criminal case docket, No. 14-cr-1255. 1 3:16-cv-01415-BEN 3:14-cr-01255-BEN 1 of counsel, unless the Court imposes a custodial sentence above 70 months.” (Docket 2 No. 39). The parties agreed to jointly recommend Movant be sentenced to 70 months in 3 custody. (Id.) The factual basis for the plea also included an admission that on or about 4 February 21, 2001, Movant was convicted of a felony for willful infliction of corporal 5 injury upon a spouse or cohabitant in violation of California Penal Code section 273.5(a). 6 (Id.) The parties agreed that there should be a +16 upward adjustment in sentencing 7 under U.S.S.G. § 2L1.2(b)(1). (Id.) 8 9 Prior to sentencing, the presentence investigation report revealed that Movant’s criminal history “dates back 25 years and consists of multiple felony convictions for 10 offenses including cultivating marijuana, purchase/possession of cocaine for sale, assault 11 with a deadly weapon, possession of a controlled substance, inflicting corporal injury on 12 a spouse, and illegal reentry after deportation.” (Docket No. 43 at 15). The report 13 concurred that a 16-level enhancement was applicable under U.S.S.G. § 14 2L1.2(b)(1)(A)(ii) for committing a crime of violence. (Id. at 6). The report stated that 15 the advisory guideline range for a custodial sentence was 77 to 96 months. (Id. at 15) 16 This Court ultimately sentenced Movant to 70 months in custody and a term of 17 supervised release of three years. (Docket No. 51). 18 On June 8, 2016, Movant filed the instant motion. (Docket No. 52). His filing is 19 captioned as a “Notice of Timely Johnson Retroactivity Claim and Preservation of Right 20 Filed Defensively.” (Id.) The full extent of his motion states that he has “file[d] this 21 Johnson retroactivity claim in a timely fashion, with-in [sic] one year of the Supreme 22 Court ruling [in Johnson v. United States, 135 S. Ct. 2551 (2015)] . . . as a general 23 objection to all unconstitutional vagueness in his conviction, with an explicit reservation 24 of the right to amend for specificity upon collateral review.” (Id.) 25 LEGAL STANDARD 26 Under section 2255, a movant is entitled to relief if the sentence: (1) was imposed 27 in violation of the Constitution or the laws of the United States; (2) was given by a court 28 without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by 2 3:16-cv-01415-BEN 3:14-cr-01255-BEN 1 law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. 2 Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to 3 state a claim, or has “no more than conclusory allegations, unsupported by facts and 4 refuted by the record,” a district court may deny a § 2255 motion without an evidentiary 5 hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). DISCUSSION2 6 Movant’s motion fails because he validly waived his right to collaterally attack his 7 8 sentence. The record discloses no issues as to the voluntariness of Movant’s plea. And, 9 contrary to his contentions, his sentence was not unconstitutionally enhanced under 10 Johnson. In Johnson, the Supreme Court considered language in the Armed Career 11 Criminal Act (“ACCA”). The ACCA imposes a mandatory minimum sentence of 15 12 years for a defendant who violates 18 U.S.C. § 922(g) and “has three previous 13 convictions by any court . . . for a violent felony or serious drug offense, or both.” 18 14 U.S.C. § 924(e)(1). The Supreme Court examined the definition of “violent felony” and 15 held that a portion of that definition known as the “residual clause” is void for vagueness. 16 Imposing an increased sentence under the residual clause of the definition of “violent 17 felony” violates the Constitution’s guarantee of due process. 135 S. Ct. at 2563. The 18 Supreme Court expressly confined its holding to this particular portion of the statute and 19 confirmed that its holding does not apply to the “serious drug offense” clause or the 20 remainder of the “violent felony” definition. Id. 21 But Johnson is not applicable because Movant was not sentenced under the 22 residual clause of the violent felony definition of the ACCA. See United States v. Ruiz- 23 Diaz, 668 F. App’x 289, 290 (9th Cir. 2016) (“Because the [sentencing] enhancement 24 was not predicated on a residual clause like the one struck down in Johnson, there is no 25 arguable issue as to whether [defendant’s] sentence is illegal.”). Rather, he was 26 27 28 2 The Court determines there is no need for an evidentiary hearing. 3 3:16-cv-01415-BEN 3:14-cr-01255-BEN 1 sentenced pursuant to § 2L1.2(b)(1) of the U.S. Sentencing Guidelines. Movant, in fact, 2 agreed to the 16-level upward adjustment for his admitted prior crime of violence. See 3 United States v. Mora-Duardo, No. 14-cr-3598-GPC, 2017 WL 2664194, at *3 (S.D. Cal. 4 June 20, 2017) (denying § 2255 petition based on Johnson because petitioner was 5 sentenced under § 2L1.2(b), rather than the residual clause of the ACCA). 6 Movant’s motion may be construed as challenging the U.S. Sentencing Guidelines 7 as unconstitutionally vague based on the same reasoning as Johnson. (See Mot. at 1 8 (asserting “a general objection to all unconstitutional vagueness in his conviction”)). 9 However, the Supreme Court rejected such an argument earlier this year. In Beckles v. 10 United States, 137 S. Ct. 886 (2017), the Supreme Court held that the federal sentencing 11 guidelines are not subject to vagueness challenges under the due process clause. Id. at 12 890, 892, 895. 13 As there are no arguable grounds as to whether Movant’s sentence is illegal, the 14 Court enforces the collateral attack waiver. Ruiz-Diaz, 668 F. App’x at 290 (citing 15 United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009)). Alternatively, Movant’s 16 motion is denied on the merits. 17 CONCLUSION 18 The Motion to Vacate, Set Aside, or Correct Sentence is DENIED. 19 A court may issue a certificate of appealability where the movant has made a 20 “substantial showing of the denial of a constitutional right,” and reasonable jurists could 21 debate whether the motion should have been resolved differently, or that the issues 22 presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 23 322, 335 (2003). This Court finds that Movant has not made the necessary showing. A 24 certificate of appealability is therefore DENIED. 25 26 IT IS SO ORDERED. Dated: September 27, 2017 27 28 4 3:16-cv-01415-BEN 3:14-cr-01255-BEN

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