Varnado v. USA

Filing 2

ORDER denying Petition to Vacate under 28 USC 2255. A certificate of appealability is also denied. Signed by Judge Larry Alan Burns on 4/24/17.(kas)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 UNITED STATES OF AMERICA, 12 CASE NO. 14cr283-LAB-1 and 16cv1833-LAB Plaintiff, vs. ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255 13 DONALD WAYNE VARNADO, 14 Defendant. 15 16 17 Defendant Donald Wayne Varnado pled guilty pursuant to a plea agreement to 18 possession of methamphetamine with intent to distribute, and of possession of a firearm in 19 connection with the drug offense. Under his plea agreement, he waived appeal and 20 collateral attack except for challenges based on effective assistance of counsel, provided 21 he was not sentenced to more than the 60 months above the high end of the guideline range 22 recommended by the government pursuant to the plea agreement. The plea agreement 23 specifically excluded any agreement as to his criminal history category. (Docket no. 22 at 24 10:25–27.) After a recommended 5K1.1 departure of -7, the resulting guideline range 25 recommendation was 84 to 105 months and the actual recommendation was 120 months. 26 (Docket no. 26). On July 29, 2014 he was sentenced to two consecutive sentences of 60 27 months, for a total of 120 months. (Docket no. 44 at 2.) Varnado filed no appeal or 28 collateral attack, and his sentence became final. -1- 14cr283-LAB-1 and 16cv1833-LAB 1 In November, 2014, California voters passed Proposition 47, under which Varnado 2 was eligible to petition California’s state courts to retrospectively reclassified two of his state 3 convictions from felonies to misdemeanors. By orders dated February 19, 2016, two of his 4 felonies were so reduced. (See Docket no. 47, Exs. A and B.) Varnado then filed a petition 5 to be resentenced by this Court, pursuant to 28 U.S.C. § 2255. He argues that with the 6 state’s reclassification of his offenses, he is entitled to a lower sentence. 7 The offenses Varnado pled guilty to carry mandatory minimum sentences. His 8 sentences were not guidelines-driven, but were statutory. His argument that he would have 9 been given a lower sentence under changed guidelines therefore fails. See, e.g., United 10 States v. Paulk, 569 F.3d 1094 (9th Cir. 2009) (per curiam) (holding that defendant whose 11 sentence was based on statutory mandatory minimum rather than sentencing guidelines was 12 not entitled to a reduction under § 3582(c)(2) based on g uideline amendment). 13 In addition, Varnado was properly sentenced under the law in force at the time, and 14 he does not argue otherwise. The argument he raises here is foreclosed by United States 15 v. Diaz, 838 F.3d 968 (9th Cir. 2016)’s holding regarding the effect of Proposition 47 16 reclassifications on federal sentencing. See especially id. at 975 (“[E]ven if California 17 decided to give Proposition 47 retroactive effect for purposes of its own state law, that would 18 not retroactively make [the defendant’s] felony conviction a misdemeanor for purposes of 19 federal law.”) 20 Finally, Varnado waived collateral attack, and his petition can properly be denied on 21 that basis as well. Even if Varnado had been entitled to benefit from the reclassification of 22 his state convictions at the time of sentencing, his criminal history score would (at best) have 23 been reduced from 15 to 9.1 Using the sentencing table in effect at the time, and keeping 24 all other factors the same, his criminal history category would have dropped from VI to IV, 25 and the guideline range would have dropped to 63–78 months. Because his sentence was 26 27 28 1 The motion does not identify which two of Varnado’s five convictions were reclassified as misdemeanors, but bearing in mind that he had five convictions, each of which scored three points, it does not really matter. At best, two of the convictions would not have scored, resulting in a criminal history score of 9 instead of 15. -2- 14cr283-LAB-1 and 16cv1833-LAB 1 less than 60 months higher than the high end of that range, his waiver still would have been 2 effective. The fact that Proposition 47 was not yet enacted does not affect the validity of his 3 waiver. See United States v. Johnson, 67 F.3d 200, 202 (9th Cir.1995). 4 5 6 7 The motion is DENIED and a certificate of appealability is also DENIED. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000); 28 U.S.C. § 22 53(c)(2). IT IS SO ORDERED. DATED: April 24, 2017 ___________________________________ 8 9 HONORABLE LARRY ALAN BURNS United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- 14cr283-LAB-1 and 16cv1833-LAB

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?