Hernandez v. USA

Filing 3

ORDER Denying Petition to Vacate under 28 USC 2255. Signed by Judge Gonzalo P. Curiel on 6/7/2017. (All non-registered users served via U.S. Mail Service) (fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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JANETTE HERNANDEZ,

Civil No.: 3:16-cv-02962-GPC
Criminal No.: 3:12-cr-00236-GPC-34

Petitioner,

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ORDER DENYING PETITIONER’S
MOTION TO VACATE, MODIFY,
OR CORRECT SENTENCE UNDER
28 U.S.C. § 2255

v.
UNITED STATES OF AMERICA,

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Respondent.

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[ECF No. 2]

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On March 15, 2013, United States District Judge Irma E. Gonzalez sentenced

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Petitioner Janette Hernandez (“Petitioner”) to 120 months of imprisonment and 5 years of

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supervised release based on her guilty plea for conspiracy to conduct enterprise affairs

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through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). (Dkt. No.

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953; Dkt. No. 965 at 1–3.) Petitioner now brings this motion to vacate, modify, or

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correct her sentence pursuant to 28 U.S.C. § 2255 (“§ 2255”) based on Amendment 794

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to United States Sentencing Guidelines (“U.S.S.G.”) § 3B1.2.

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For the following reasons, this Court DENIES Petitioner’s motion to vacate,
modify, or correct her sentence.
BACKGROUND
On July 27, 2012, Petitioner Janette Hernandez signed a plea agreement, pleading
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guilty to participating in a conspiracy or agreement of an enterprise, the Mexican Mafia,

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through a pattern of racketeering with knowledge of the enterprise’s purpose. (Dkt. No.

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606 at 2.) Petitioner signed the agreement with the advice and consent of counsel and

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waived her right to collaterally attack her conviction or sentence. (Dkt. No. 606 at 10.)

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Following the recommendation provided by the United States Probation Office in the

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Pre-Sentence Report, (Dkt. No. 695 at 19), Judge Gonzalez sentenced Petitioner to 120

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months of imprisonment and 5 years of supervised release, (Dkt. No. 953; Dkt. No. 965

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at 2–3).

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Petitioner has previously filed two motions to reduce her sentence. First, on May

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29, 2015, Petitioner, proceeding pro se, filed a motion to reduce her sentence pursuant to

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18 U.S.C. § 3582 (“§ 3582”) based on Amendment 782 to the U.S.S.G. (Dkt. No. 1850

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at 1.) This motion was denied because making such an adjustment would not affect the

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final sentencing offense level under U.S.S.G. 3D1.4(b), and thus the sentencing guideline

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calculations would not change. (Dkt. No. 2011 at 2.) Second, on May 19, 2016,

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Petitioner, proceeding pro se, filed a motion to reduce her sentence pursuant to § 2255

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based on Johnson v. United States, 135 S. Ct. 2551 (2015). (Dkt. No. 1955.) This

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motion was also denied because Johnson would have had no bearing on the sentencing

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adjustments made by the sentencing judge. (Dkt. No. 1958 at 2.)

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On December 6, 2016, Petitioner, proceeding pro se, brought this motion to vacate,

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modify, or correct her sentence pursuant to § 2255 based on Amendment 794 to U.S.S.G.

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§ 3B1.2. (Dkt. No. 2026.) Petitioner argues that, based on United States v. Quintero-

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Leyva, 823 F.3d 519 (9th Cir. 2016), Amendment 794 should be applied retroactively for

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a minor role reduction. (Dkt. No. 2026 at 1.) Respondent United States then filed its

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response in opposition to Petitioner’s motion to vacate, claiming that (1) this motion to

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reduce the sentence cannot be brought under § 2255; (2) even if the motion was properly

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brought under § 3582, Amendment 794 cannot be applied retroactively; and (3)

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Petitioner’s plea agreement included a waiver of her right to collaterally attack her

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sentence. (Dkt. No. 2035.)
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DISCUSSION
I.

28 U.S.C. § 2255 Motion

Petitioner is arguing for a retroactive reduction to her sentence under 28 U.S.C.

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§ 2255 based on Amendment 794 to U.S.S.G. § 3B1.2. Section 2255, though, provides

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that a federal prisoner seeking relief from a custodial sentence “may move the court

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which imposed the sentence to vacate, set aside or correct the sentence” only on “the

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ground that the sentence was imposed in violation of the Constitution or laws of the

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United States, or that the court was without jurisdiction to impose such sentence, or that

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the sentence was in excess of the maximum authorized by law, or is otherwise subject to

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collateral attack[.]” 28 U.S.C. § 2255(a). To warrant relief under § 2255, a prisoner must

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allege a constitutional, jurisdictional, or otherwise “fundamental defect which inherently

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results in a complete miscarriage of justice [or] an omission inconsistent with the

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rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783–

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84 (1979) (internal citation and quotation marks omitted).

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Petitioner’s assertion, here, does not involve violations of the Constitution or laws

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of the United States, a lack of jurisdiction, or a sentence in excess of authorized

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maximums. Thus, because Petitioner has not alleged any fundamental defect resulting in

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the miscarriage of justice, a § 2255 claim cannot be used to apply Amendment 794.

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II.

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A claim regarding Amendment 794 can instead be brought under 18 U.S.C.

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§ 3582(c), as a motion to reduce Petitioner’s sentence. Therefore, because pro se filings

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are to be construed liberally, Petitioner’s claim will be construed as an allegation under

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§ 3582. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Applying Amendment 794 Retroactively

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The Ninth Circuit found that the language of Amendment 794 implied that it was

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intended to be a clarifying amendment. See United States v. Quintero-Leyva, 823 F.3d

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519, 523 (9th Cir. 2016) (finding in part that Amendment 794 could be applied

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retroactively on direct appeal because it was a clarifying amendment). However,

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clarifying amendments cannot be applied retroactively when it comes to § 3582 claims.
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See United States v. Stokes, 300 F. App’x. 507, 508 (9th Cir. 2008) (“[E]ven if the

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amendment at issue were a ‘clarifying amendment’ that applied retroactively, such

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retroactive calculation could only occur in the context of a direct appeal or a 28 U.S.C.

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§ 2255 petition, and not in a motion for reduction of sentence pursuant to 18 U.S.C.

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§ 3582(c).”).

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Other district courts have also generally used this same reasoning and refused to

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apply Amendment 794 retroactively. See, e.g., United States v. Yanez, No. 16-CV-1964-

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LAB, 2016 WL 4248541, at *1 (S.D. Cal. Aug. 11, 2016) (“Amendment 794 is not

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retroactive for purposes of a § 3582 motion.”); United States v. Sprouse, No. 2:12-CR-

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122, 2017 WL 218376, at *2 (E.D. Tenn. Jan. 18, 2017); United States v. Collins, No.

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2:14–CR–368, 2016 WL 6835063, at *1 (S.D. Tex. Nov. 21, 2016) (finding that

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Amendment 794 was not listed under § 1B1.10 of the Sentencing Guidelines as eligible

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for retroactive effect, and thus not intended to be applied retroactively). Therefore, even

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if Petitioner’s claim were construed as a § 3582(c) motion, Amendment 794 cannot be

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applied retroactively because it is clarifying amendment.

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III.

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Furthermore, Petitioner signed a plea agreement that waived all her rights to

Waiver of Right to Collaterally Attack Sentence

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collaterally attack either her conviction or sentence. Plea agreements are contracts that

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must be reviewed under contract law standards. United States v. Keller, 902 F.2d 1391,

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1393 (9th Cir. 1990). A court should uphold a plea agreement unless the criminal

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defendant that pleaded guilty could not reasonably have understood the terms of the

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agreement. United States v. De la Fuente, 8 F.3d 1333, 1337–38 (9th Cir. 1993) (internal

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citations omitted). Waivers that are made voluntarily and knowingly by a criminal

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defendant are enforceable and do not violate the Constitution. United States v. Navarro-

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Botello, 912 F.2d 318, 319 (9th Cir. 1990). A criminal defendant may thus lawfully

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waive her right to collaterally attack her sentence, and such waivers are enforceable

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subject only to a narrow range of exceptions. Garcia-Santos v. United States, 273 F3.d

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506 (2d Cir. 2001).
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Here, the plea agreement evidences that Petitioner reasonably understood the terms

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of the agreement, and thus it was enforceable. First, Petitioner initialed the bottom of

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each page of the plea agreement. (Dkt. No. 606.) Furthermore, she signed that she fully

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understood and was satisfied with the agreement and had discussed it with counsel. (Dkt.

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No. 606 at 12.) Petitioner also signed that the written plea agreement embodied the entire

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agreement and could not be modified except through writing, further evidencing that this

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was reasonably understood to be final. (Dkt. No. 606 at 11).

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Through the plea agreement, Petitioner agreed, in relevant part that “[i]n exchange
for the United States’ concessions in this plea agreement, Defendant waives, to the full

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extent of the law, any right to appeal or to collaterally attack the conviction and sentence,

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including any restitution order.” (Dkt. No. 606 at 10.) Therefore, because the plea

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agreement is enforceable, Petitioner’s waiver of her right to collaterally attack her

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sentence is also enforceable. Thus, even if Petitioner’s § 2255 motion were viable,

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Petitioner waived her right to bring such a claim.

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IV.

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“Unless the motion and the files and records of the case conclusively show that the

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prisoner is entitled to no relief,” the Court must hold an evidentiary hearing on the merits

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of a § 2255 motion. 28 U.S.C. § 2255(b). The Ninth Circuit has explained the “standard

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essentially is whether the movant has made specific factual allegations that, if true, state a

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claim on which relief could be granted.” United States v. Schaflander, 743 F.2d 714, 717

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(9th Cir. 1984) (per curiam). Therefore, an evidentiary hearing is unnecessary if the

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allegations, “when viewed against the record, do not state a claim for relief or are so

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palpably incredible or patently frivolous as to warrant summary dismissal.” United

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States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (internal quotation marks omitted).

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Evidentiary Hearing

Petitioner failed to allege a § 2255 claim because in applying Amendment 794,

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Petitioner did not assert a constitutional, jurisdictional, or other fundamental defect that

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inherently resulted in a miscarriage of justice. Furthermore, even in asserting a § 3582

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claim, Petitioner did not state a claim because Amendment 794 could not be applied
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retroactively. Accordingly, Petitioner’s claims do not merit holding an evidentiary

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hearing.

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V.

Certificate of Appealability

Under AEDPA, a prisoner seeking to appeal a district court’s denial of a habeas

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petition must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). The

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district court may issue a certificate of appealability “only if the applicant has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To

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satisfy this standard, a petitioner must show that “reasonable jurists would find the

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district court’s assessment of the constitutional claims debatable or wrong.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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For the reasons stated above, Petitioner has not substantially shown a denial of a

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constitutional right. Accordingly, this Court sua sponte DENIES granting Petitioner a

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certificate of appealability.

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CONCLUSION

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For the foregoing reasons, this Court DENIES Petitioner’s motion to vacate,

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modify, or correct her sentence pursuant to Amendment 794 to U.S.S.G. § 3B1.2 under

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28 U.S.C. § 2255.

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IT IS SO ORDERED.
Dated: June 7, 2017

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