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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ELIAS ROSAS-NUNEZ AKA JOSE
MANUEL NUNEZ-ROSAS,
Movant,

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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.

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Movant, Elias Rosas-Nunez, also known as Jose Manuel Nunez-Rosas, proceeding

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pro se, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C.

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§ 2255. Respondent, the United States, filed a response, opposing the motion. For the

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reasons set forth below, this Court DENIES Movant’s Motion.

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BACKGROUND

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On May 1, 2014, Movant waived indictment and was charged by a criminal

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information with attempted reentry of a previously deported alien in violation of 8 U.S.C.

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§ 1326. (Docket Nos. 9, 10).1 Movant pleaded guilty to the charged offense. (Docket

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Nos. 40, 44). The plea agreement included a waiver of appeal and collateral attack,

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“except for a post-conviction collateral attack based on a claim of ineffective assistance

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All docket citations refer to the criminal case docket, No. 14-cr-1255.
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of counsel, unless the Court imposes a custodial sentence above 70 months.” (Docket

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No. 39). The parties agreed to jointly recommend Movant be sentenced to 70 months in

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custody. (Id.) The factual basis for the plea also included an admission that on or about

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February 21, 2001, Movant was convicted of a felony for willful infliction of corporal

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injury upon a spouse or cohabitant in violation of California Penal Code section 273.5(a).

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(Id.) The parties agreed that there should be a +16 upward adjustment in sentencing

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under U.S.S.G. § 2L1.2(b)(1). (Id.)

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Prior to sentencing, the presentence investigation report revealed that Movant’s
criminal history “dates back 25 years and consists of multiple felony convictions for

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offenses including cultivating marijuana, purchase/possession of cocaine for sale, assault

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with a deadly weapon, possession of a controlled substance, inflicting corporal injury on

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a spouse, and illegal reentry after deportation.” (Docket No. 43 at 15). The report

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concurred that a 16-level enhancement was applicable under U.S.S.G. §

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2L1.2(b)(1)(A)(ii) for committing a crime of violence. (Id. at 6). The report stated that

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the advisory guideline range for a custodial sentence was 77 to 96 months. (Id. at 15)

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This Court ultimately sentenced Movant to 70 months in custody and a term of

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supervised release of three years. (Docket No. 51).

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On June 8, 2016, Movant filed the instant motion. (Docket No. 52). His filing is

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captioned as a “Notice of Timely Johnson Retroactivity Claim and Preservation of Right

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Filed Defensively.” (Id.) The full extent of his motion states that he has “file[d] this

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Johnson retroactivity claim in a timely fashion, with-in [sic] one year of the Supreme

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Court ruling [in Johnson v. United States, 135 S. Ct. 2551 (2015)] . . . as a general

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objection to all unconstitutional vagueness in his conviction, with an explicit reservation

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of the right to amend for specificity upon collateral review.” (Id.)

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LEGAL STANDARD

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Under section 2255, a movant is entitled to relief if the sentence: (1) was imposed

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in violation of the Constitution or the laws of the United States; (2) was given by a court

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without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by
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law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v.

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Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to

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state a claim, or has “no more than conclusory allegations, unsupported by facts and

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refuted by the record,” a district court may deny a § 2255 motion without an evidentiary

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hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).
DISCUSSION2

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Movant’s motion fails because he validly waived his right to collaterally attack his

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sentence. The record discloses no issues as to the voluntariness of Movant’s plea. And,

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contrary to his contentions, his sentence was not unconstitutionally enhanced under

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Johnson. In Johnson, the Supreme Court considered language in the Armed Career

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Criminal Act (“ACCA”). The ACCA imposes a mandatory minimum sentence of 15

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years for a defendant who violates 18 U.S.C. § 922(g) and “has three previous

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convictions by any court . . . for a violent felony or serious drug offense, or both.” 18

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U.S.C. § 924(e)(1). The Supreme Court examined the definition of “violent felony” and

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held that a portion of that definition known as the “residual clause” is void for vagueness.

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Imposing an increased sentence under the residual clause of the definition of “violent

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felony” violates the Constitution’s guarantee of due process. 135 S. Ct. at 2563. The

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Supreme Court expressly confined its holding to this particular portion of the statute and

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confirmed that its holding does not apply to the “serious drug offense” clause or the

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remainder of the “violent felony” definition. Id.

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But Johnson is not applicable because Movant was not sentenced under the

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residual clause of the violent felony definition of the ACCA. See United States v. Ruiz-

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Diaz, 668 F. App’x 289, 290 (9th Cir. 2016) (“Because the [sentencing] enhancement

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was not predicated on a residual clause like the one struck down in Johnson, there is no

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arguable issue as to whether [defendant’s] sentence is illegal.”). Rather, he was

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The Court determines there is no need for an evidentiary hearing.
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sentenced pursuant to § 2L1.2(b)(1) of the U.S. Sentencing Guidelines. Movant, in fact,

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agreed to the 16-level upward adjustment for his admitted prior crime of violence. See

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United States v. Mora-Duardo, No. 14-cr-3598-GPC, 2017 WL 2664194, at *3 (S.D. Cal.

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June 20, 2017) (denying § 2255 petition based on Johnson because petitioner was

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sentenced under § 2L1.2(b), rather than the residual clause of the ACCA).

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Movant’s motion may be construed as challenging the U.S. Sentencing Guidelines

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as unconstitutionally vague based on the same reasoning as Johnson. (See Mot. at 1

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(asserting “a general objection to all unconstitutional vagueness in his conviction”)).

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However, the Supreme Court rejected such an argument earlier this year. In Beckles v.

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United States, 137 S. Ct. 886 (2017), the Supreme Court held that the federal sentencing

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guidelines are not subject to vagueness challenges under the due process clause. Id. at

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890, 892, 895.

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As there are no arguable grounds as to whether Movant’s sentence is illegal, the

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Court enforces the collateral attack waiver. Ruiz-Diaz, 668 F. App’x at 290 (citing

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United States v. Watson, 582 F.3d 974, 988 (9th Cir. 2009)). Alternatively, Movant’s

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motion is denied on the merits.

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CONCLUSION

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The Motion to Vacate, Set Aside, or Correct Sentence is DENIED.

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A court may issue a certificate of appealability where the movant has made a

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“substantial showing of the denial of a constitutional right,” and reasonable jurists could

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debate whether the motion should have been resolved differently, or that the issues

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presented deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S.

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322, 335 (2003). This Court finds that Movant has not made the necessary showing. A

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certificate of appealability is therefore DENIED.

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IT IS SO ORDERED.
Dated: September 27, 2017

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