Calderon-Jimenez v. USA

Filing 2

ORDER Denying Petitioner's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255. Signed by Judge John A. Houston on 3/6/2020. (All non-registered users served via U.S. Mail Service) (tcf)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

PABLO CALDERON-JIMENEZ,

Criminal Case No.: 13cr2467-JAH
Civil Case No.: 16cv1798-JAH

Petitioner,

12
13

v.

14

UNITED STATES OF AMERICA,

ORDER DENYING PETITIONER’S
MOTION TO VACATE, SET ASIDE,
OR CORRECT SENTENCE
PURSUANT TO 28 U.S.C. § 2255
(Doc. No. 97).

Respondent.

15
16
17
18

INTRODUCTION

19

This matter comes before the Court on Petitioner Pablo Calderon-Jimenez’s

20

(“Petitioner”) pro se motion to vacate, set aside, or correct his sentence pursuant to 28

21

U.S.C. § 2255. Doc. No. 97. Petitioner’s motion has been fully briefed. See Doc. No. 99.

22

Under Rule 4 of the Rules Governing § 2255 Proceedings, this Court may dismiss a § 2255

23

motion if it “plainly appears” from the motion, attached exhibits, and the record of prior

24

proceedings, that a petitioner is not entitled to relief. See Rule 4 of the Rules Governing §

25

2255 Proceedings; see also United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994).

26

Having thoroughly considered the parties’ briefing, the relevant record, and, in accordance

27

with Rule 4, the Court finds oral argument unnecessary, and hereby DENIES Petitioner’s

28

motion.
1
Crim. Case No.: 13cr2467-JAH
Civil Case No.: 16cv1798-JAH

1

BACKGROUND

2

On July 2, 2013, Petitioner was charged in an indictment for being a removed alien

3

found in the United States in violation of 28 U.S.C. § 1326. See Doc. No. 1. On May 5,

4

2014, a jury returned a verdict finding Petitioner guilty. See Doc. No. 48. At sentencing,

5

the Court determined Petitioner’s adjusted offense level was 22, as a result of a sixteen-

6

level enhancement “due to the crime of violence committed prior to a deportation,” and a

7

minus-two adjustment for acceptance of responsibility. See Doc. No. 82 at 24. Petitioner

8

had a criminal history score of 13 and criminal history category of six, and a Guideline

9

range of 84 to 105 months in custody. Id. Petitioner was sentenced to 70-months in Bureau

10

of Prisons custody, followed by three years of supervised release. See Doc. No. 66.

11

Judgment was entered on November 26, 2014. See Doc. Nos. 66, 67. After imposition of

12

the sentence, Petitioner appealed his conviction to the Ninth Circuit. See Doc. No. 68. The

13

Ninth Circuit affirmed his conviction in an unpublished memorandum decision on

14

February 2, 2016. See Doc. No. 93.

15

On July 11, 2016, Petitioner, proceeding pro se, filed the instant § 2255 motion

16

arguing, as his basis for relief, United States v. Johnson. 135 S. Ct. 2551 (2015); Doc. No.

17

97. On December 30, 2016, Respondent filed a response in opposition. See Doc. No. 99.

18

Petitioner did not file a reply brief.

19

DISCUSSION

20

As a threshold matter, “a defendant seeking relief under 28 U.S.C. § 2255 . . . must

21

be in custody, [and] . . . claim the right to be released from custody.” United States v.

22

Kramer, 195 F.3d 1129 (9th Cir. 1999). Here, the Bureau of Prisons (“BOP”) inmate

23

locator indicates that Petitioner was released from custody on June 20, 2018.1 Despite

24

Petitioner being out of BOP custody, he is still under supervised release and therefore in

25

custody within the meaning of § 2255. Mujahid v. Daniels, 413 F. 3d 991, 994 (9th Cir.

26
27
1

28

See Inmate Locator & Record Availability, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/
(last visited Feb. 26, 2020).
2
Crim. Case No.: 13cr2467-JAH
Civil Case No.: 16cv1798-JAH

1

2005) (quoting Matus–Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002) (“[A]

2

habeas petitioner remains in the custody of the United States while on supervised

3

release”)).

4

I.

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

Motion to Vacate, Set Aside, Or Correct Sentence Pursuant To 28 U.S.C. §
2255
A.
Legal Standard
The provisions of the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) apply to petitions for writ of habeas corpus filed in federal court after April
24, 1996. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Therefore, the
instant petition is subject to AEDPA because it was filed on July 11, 2016. A § 2255 motion
may be brought to vacate, set aside, or correct a federal sentence on the following grounds:
(1) that the sentence “was imposed in violation of the Constitution or laws of the United
States,” (2) that “the court was without jurisdiction to impose such [a] sentence,” (3) that
“the sentence was in excess of the maximum authorized by law,” or (4) that “the sentence
is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
B.

Analysis

In Johnson, the Court held that the residual clause of the Armed Career Criminal Act
(“A.C.C.A.”) was void for vagueness because it violates Due Process. Johnson, supra, 135
S. Ct. at 2551. The Court explicitly stated its decision “does not call into question
application of the [ACCA] to . . . the remainder of the Act’s definition of a violent felony,”
including a felony offense that “has as an element the use, attempted use, or threatened use
of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i), and a felony
offense that “is burglary, arson, or extortion, [or] involves use of explosives,” 18 U.S.C. §
924(e)(2)(B)(ii). 135 S.Ct. at 2563. Moreover, the Court held that its decision in Johnson
announced a new substantive rule that applied retroactively on collateral review. See Welch
v. United States, 136 S. Ct. 1257 (2016). Later, the Court determined that a similar
provision in the Guidelines was not unconstitutional because the Guidelines were merely
advisory. Beckles v. United States, 137 S. Ct. 886 (2017) (“Because they merely guide the

28
3
Crim. Case No.: 13cr2467-JAH
Civil Case No.: 16cv1798-JAH

1

district court’s discretion, the Guidelines are not amenable to a void for vagueness

2

challenge.”)

3

Petitioner challenges “his +16 points enhancement increased [sic] for a past state

4

statute conviction that resulted in his deportation. The enhancement was based on a

5

California Penal Code 422 when he was being sentence [sic] for Illegal Re-Entry 8 U.S.C.

6

1326(a)(b)(2)[.]” See Doc. No. 97 at 1. In response, Respondent argues that Petitioner is

7

not entitled to habeas relief because Petitioner “was not sentenced using any guidelines

8

provision that contains language similar to the language found infirm in Johnson,

9

[therefore] his petition must be denied.” See Doc. No. 99 at 4 (citations omitted).

10

The Court finds the holding in Johnson does not provide a basis for relief for

11

Petitioner. The United States Sentencing Guidelines (“USSG”) provides for a sixteen-level

12

enhancement if “the defendant previously was deported ... after ... a conviction for a felony

13

that is ... a crime of violence.” USSG § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2

14

provides that:

15
16
17
18
19
20

“Crime of violence" means any of the following offenses under federal, state,
or local law: murder, manslaughter, kidnapping, aggravated assault, forcible
sex offenses (including where consent to the conduct is not given or is not
legally valid, such as where consent to the conduct is involuntary,
incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery,
arson, extortion, extortionate extension of credit, burglary of a dwelling, or
any other offense under federal, state, or local law that has as an element the
use, attempted use, or threatened use of physical force against the person of
another.

21
22
23
24
25
26
27
28

USSG § 2L1.2, Application Note 1(B)(iii).
As stated above, this Court prescribed Petitioner a sixteen-level sentence
enhancement for a violation of California Penal Code § 422. The Ninth Circuit has
established that California Penal Code § 422 is “categorically a conviction for a crime of
violence,” as it “requires a threatened use of violent physical force against another person.”
United States v. Villavicencio-Burruel, 608 F.3d 556, 562 (9th Cir. 2010). This was
reaffirmed in Petitioner’s direct appeal. United States v. Pablo Calderon-Jimenez, 637 F.
4
Crim. Case No.: 13cr2467-JAH
Civil Case No.: 16cv1798-JAH

1

App’x. 295 (9th Cir. 2016) (unpublished) (“Calderon-Jimenez’s argument that a criminal

2

threats conviction under California Penal Code § 422 was not a crime of violence under

3

§2L1.2 of the Sentencing Guidelines is squarely foreclosed by [Villavicenio-Burruel]”).

4

Therefore, because Petitioner’s sentence enhancement was not prescribed by the residual

5

clause and there is no language in USSG § 2L1.2 or the commentary to USSG § 2L1.2

6

similar to the residual clause, such that a reasonabe argument can be made that USSG §

7

2L1.2 should be invalidated by the ruling in Johnson, Petitioner’s habeas fails.

8

II.

Certificate of Appealability

9

To appeal a district court’s denial of a § 2255 petition, a petitioner must obtain a

10

certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A district court may issue a

11

certificate of appealability “only if the applicant has made a substantial showing of the

12

denial of a constitutional right.” Id. § 2253(c)(2). To satisfy this standard, the petitioner

13

must show that “reasonable jurists would find the district court's assessment of the

14

constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

15

For the reasons stated above, no reasonable jurist could conclude that Petitioner is

16

entitled to relief based on the arguments set forth in his § 2255 motion. Accordingly, the

17

Court declines to grant Petitioner a certificate of appealability.

18

CONCLUSION AND ORDER

19

Based on the foregoing, IT IS HEREBY ORDERED Petitioner’s motion to vacate,

20

set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED. Doc. No. 97.

21
22

IT IS SO ORDERED.
DATED:

March 6, 2020

23
24
25

_________________________________
JOHN A. HOUSTON
UNITED STATES DISTRICT JUDGE

26
27
28
5
Crim. Case No.: 13cr2467-JAH
Civil Case No.: 16cv1798-JAH