Alvarado v. USA
Filing
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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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RAUL ALVARADO,
Case No.: 3:16-cv-01859-BEN
3:13-cr-01128-BEN
Movant,
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v.
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UNITED STATES OF AMERICA,
ORDER DENYING MOTION TO
VACATE, SET ASIDE, OR
CORRECT SENTENCE UNDER 28
U.S.C. § 2255
Respondent.
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Movant, Raul Alvarado, proceeding pro se, filed a Motion to Vacate, Set Aside, or
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Correct his Sentence pursuant to 28 U.S.C. § 2255. Respondent, the United States, filed
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a response, opposing the motion. For the reasons set forth below, this Court DENIES the
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Motion.
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BACKGROUND
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On June 13, 2013, Movant waived indictment and was charged by a criminal
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information with one count of conspiracy to distribute 5 grams or more of
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methamphetamine in violation of 21 U.S.C. § 841(a)(1) and § 846. (Docket Nos. 222,
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223).1 Movant entered a plea agreement with Respondent, in which he “waive[d], to the
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All docket citations refer to the criminal case docket, No. 13-cr-1128.
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full extent of the law, any right to appeal or to collaterally attack the conviction and
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sentence . . . unless the Court impose[d] a custodial sentence above the greater of the high
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end of the guideline range recommended by the United States.” (Docket No. 227).
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Movant thereafter pleaded guilty and came before this Court for sentencing. (Docket No.
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225, 239). The Government recommended 235 months in custody as the high end of the
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guideline range. (Docket No. 316). This Court sentenced Movant below the
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Government’s high end recommendation. It imposed a 188 month custodial sentence and
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a period of supervised release of ten years. (Docket No. 384).
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Almost three years after his sentencing, Movant filed the instant motion. (Docket
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No. 823). He asserts two grounds for relief. First, he contends that he is serving an
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illegal sentence based on the U.S. Supreme Court’s ruling in Johnson v. United States,
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135 S. Ct. 2551 (2015). Second, he contends that three of his prior felony convictions
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have been reduced to misdemeanors under California law, thus making him ineligible for
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a sentencing enhancement as a career offender.
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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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The Court determines there is no need for an evidentiary hearing.
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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. Johnson considered language in the Armed Career Criminal Act (“ACCA”).
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The ACCA imposes a mandatory minimum sentence of 15 years for a defendant who
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violates 18 U.S.C. § 922(g) and “has three previous convictions by any court . . . for a
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violent felony or serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The Supreme
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Court examined the definition of “violent felony” and held that a portion of that
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definition known as the “residual clause” is void for vagueness. Imposing an increased
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sentence under the residual clause of the definition of “violent felony” violates the
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Constitution’s guarantee of due process. 135 S. Ct. at 2563. The Supreme Court
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expressly confined its holding to this particular portion of the statute and confirmed that
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its holding does not apply to the “serious drug offense” clause or the remainder of the
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“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, his sentencing
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enhancements were based on his multiple convictions for drug-related crimes. (See
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Presentence Report ¶¶ 42-56). Thus, the Court enforces the collateral attack waiver.
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Ruiz-Diaz, 668 F. App’x at 290 (citing United States v. Watson, 582 F.3d 974, 988 (9th
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Cir. 2009)).
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Alternatively, Movant’s motion is denied on the merits. As noted above, the Court
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rejects Movant’s first argument that his sentence is illegal under Johnson. Movant’s
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second ground for relief argues that California’s passage of Proposition 47 reduced three
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of his prior drug-related offenses from felonies to misdemeanors. He contends that he
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can no longer be considered a career offender due to the reclassification and must be
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resentenced. Movant is incorrect. The Ninth Circuit’s holding in United States v. Diaz,
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838 F.3d 968, 975 (9th Cir. 2016), forecloses his argument. In Diaz, the Ninth Circuit
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held that “Proposition 47 . . . does not undermine a prior conviction’s felony-status for
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purposes of § 841. California’s later actions cannot change the fact that [the defendant]
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committed his federal offense ‘after two or more convictions for a felony drug offense
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[had] become final.’” Id. Regardless of the treatment of Movant’s prior convictions
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now, “Proposition 47 does not change the historical fact” that Movant had two or more
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prior felony drug convictions at the time of his sentencing.
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CONCLUSION
The Motion to Vacate, Set Aside, or Correct Sentence is DENIED.
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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