Torres v. USA
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE re 1 as to Daniel Raymond Torres - Signed by JUDGE DERRICK K. WATSON on 5/10/2017. "For the foregoing reasons, the Court DENIES Torres' Section 2255 Motion and DENIES a COA. The Clerk of the Court is directed to enter judgment in favor of the United States and close the case file." (CR 12-00825 DKW; CV 16-00610 DKW-KJM) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Daniel Raymond Torres shall be served by first class mail at the address of record on May 11, 2017.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI‘I
DANIEL RAYMOND TORRES,
CR. NO. 12-00825 DKW
CV. NO. 16-00610 DKW-KJM
UNITED STATES OF AMERICA,
ORDER DENYING MOTION
UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR
On November 13, 2013, Petitioner Daniel Raymond Torres pled guilty to, and
was sentenced to 151 months imprisonment for, one count of distributing 50 grams
or more of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A).
Relying on 28 U.S.C. § 2255, Torres now seeks to vacate and reduce his sentence
based upon the application of California Proposition 47, the Safe Neighborhoods
and Schools Act, Cal. Penal Code § 1170.18, which, in 2016, enabled him to
reclassify three California felony theft convictions from the 1990s to misdemeanors.
Because Torres already completed his sentences for the three reclassified state
convictions, however, he is not eligible for a reduction of his federal sentence under
Proposition 47. Nor would his current request to recalculate his criminal history
score under the sentencing guidelines provide him the relief he presently seeks.
Accordingly, after careful consideration of Torres’ Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”), the record, and
the relevant legal authority, the Section 2255 Motion is DENIED.
Indictment And Guilty Plea
Torres was charged in a two-count Indictment on August 2, 2012 with
(1) conspiracy to distribute and to possess with intent to distribute 50 grams or more
of methamphetamine on January 19, 2012, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846 (Count I); and (2) distribution of 50 grams or more of
methamphetamine on January 17, 2012, in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A) (Count II). Dkt. No. 4 (8/2/12 Indictment). There was also an
associated criminal forfeiture allegation. He was arrested on August 19, 2012 and
detained pending trial. Dkt. No. 16 (Arrest Warrant); Dkt. No. 19 (9/7/12
On May 21, 2013, Torres pled guilty to Count II of the Indictment, pursuant to
a plea agreement, before United States District Judge Leslie E. Kobayashi. Dkt.
No. 42 (5/21/13 Court Minutes); Dkt. No. 43 (5/21/13 Memorandum of Plea
Agreement). At the change of plea hearing, the court accepted Torres’ plea of
guilty and deferred acceptance of the plea agreement until after preparation of a
Presentence Report (“PSR”), and the Government agreed to dismiss Count I at the
time of sentencing. Id. On August 19, 2013, the case was reassigned to this Court.
Dkt. No. 44 (8/19/13 Order of Reassignment).
Sentence And Post-Sentencing Relief
On November 13, 2013, this Court sentenced Torres to a term of
imprisonment of 151 months together with five years of supervised release. Dkt.
No. 58 (11/13/13 Court Minutes). At the sentencing hearing, the Court accepted
the plea agreement and granted the Government’s oral motion to dismiss Count I.
Dkt. No. 38 (11/13/13 Court Minutes); Dkt. No. 59 (11/18/13 Judgment). After
granting the Government’s request for a one-level timely plea adjustment under
U.S.S.G. § 3E1.1(b), and considering Torres’ allocution, along with counsels’
arguments, the Court sentenced Torres at the bottom of the guidelines range of 151
to 188 months (offense level 29, criminal history category VI). Dkt. No. 38
(11/13/13 Court Minutes); Dkt. No. 59 (11/18/13 Judgment); see also PSR at 6, 13,
25, Dkt. No. 60.
2015 Motion For Reduction Of Sentence
On October 14, 2015, the Court reduced Torres’ term of imprisonment from
151 to 130 months, granting his motion for reduction of sentence pursuant to 18
U.S.C. § 3582(c)(2) for retroactive application of Amendment 782. Dkt. No. 61.
That order took effect on November 1, 2015. Id.
Section 2255 Motion
Torres timely filed his Section 2255 Motion on November 7, 2016. Dkt. No.
63. The sole ground for relief asserted is that “the passing of California’s
Proposition 47 by law re-classified three of [Torres’] California Convictions from
Felonies to Misdemeanors.”1 Section 2255 Motion at 4. In support, Torres
attached three minute orders from the Superior Court of California, County of
Orange, each granting his petition pursuant to Proposition 47 to reclassify a felony
violation to a misdemeanor. See Section 2255 Motion, Ex. 1 (4/25/16 Minute
Order); Ex. 2 (4/21/16 Minute Order); Ex. 3 (8/2/16 Minute Order). The United
States verified and confirmed that Torres’ California state felony convictions in
1996 (Case No. 96HF0175), 1997 (Case No. 96HF1152), and 1999 (Case No.
99HF0102) were reclassified as misdemeanors. See Mem. In Opp’n at 5-6 n.2, Dkt.
Proposition 47 was passed on November 4, 2014, and the California state court reclassified
Torres’ three felony convictions as misdemeanors on April 8, 2016 and May 12, 2016. See
Section 2255 Motion at 10, Exs. 1-3. Torres thus presents facts supporting his claim that could
not have been discovered earlier through the exercise of due diligence, and petitioned this Court,
pro se, within one year of the time his prior felony convictions were reclassified in April and May
of 2016. See 28 U.S.C. § 2255(f)(4).
Torres asks the Court to “re-open” his federal sentence because “the State
sentence was used to increase the Federal Sentence [and the state sentence] was
successfully removed after the Federal Sentence was imposed.” Section 2255
Motion at 4. He requests that the Court “re-sentence [him] with a proper
calculation under the Sentencing Guideline[s] minus the Three previous[ly] used
Felony Convictions.” Section 2255 Motion at 12. In his Reply brief, Torres
reiterates that he “has had [three] of his prior state sentences removed,” and
therefore “there is no argument that Petitioner does not have [three] prior felony
convictions that were used to increase [his] federal sentence[.]” Reply at 2, Dkt.
No. 72. Torres asks the Court to “order a new PSR” because his “old PSR does not
reflect the fact that he no longer has [three] of his previous felony convictions.” Id.2
STANDARD OF REVIEW
Under Section 2255, “[a] prisoner in custody under sentence of a court
established by Act of Congress . . . may move the court which imposed the sentence
to vacate, set aside, or correct the sentence.” 28 U.S.C. § 2255(a). The statute
authorizes the sentencing court to grant relief if it concludes “that the sentence was
imposed in violation of the Constitution or laws of the United States, or that the court
The PSR assigned three criminal history points for each of Torres’ three California state felony
convictions that were subsequently reclassified as misdemeanors under California law, including
his 1996 conviction for grand theft (Case No. 96HF0175); his 1997 conviction for burglary and
grand theft (Case No. 96HF1152); and his 1999 conviction for grand theft (Case No. 99HF0102).
See PSR at ¶¶ 38, 40-41.
was without jurisdiction to impose such sentence, or that the sentence was in excess
of the maximum authorized by law, or is otherwise subject to collateral attack[.]”
In addition, the Court shall hold an evidentiary hearing on a petitioner’s
motion “[u]nless the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief[.]” 28 U.S.C. § 2255(b). The standard for
holding an evidentiary hearing is whether the petitioner has made specific factual
allegations that, if true, state a claim on which relief could be granted. United
States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984). In other words, “[a]
hearing must be granted unless the movant’s allegations, when viewed against the
record, do not state a claim for relief or are so palpably incredible or patently
frivolous as to warrant summary dismissal.” Id.
Torres Is Not Entitled To Relief Under Section 2255 Based Upon
The Reclassification Of His State Felony Convictions Pursuant to
California Proposition 47
Although Torres successfully reclassified three of his California felony
convictions to misdemeanors in 2016, his Section 2255 Motion falls short for several
reasons. First, the Ninth Circuit has rejected the application of Proposition 47 to
Section 2255 motions seeking a federal sentencing reduction, holding that it does not
work to convert a defendant’s felony conviction into a misdemeanor as a matter of
federal law. Second, because Torres already completed his sentences for the three
reclassified state felonies, he is not eligible for a reduction of his federal sentence
under Proposition 47. Third, although Torres seeks a new PSR for the purpose of
“removing the three felony convictions” in order to recalculate his criminal history
score, there is no reason to believe that a new PSR would alter his current sentence.
Because Torres is not entitled to the relief he seeks, his Section 2255 Motion is
Proposition 47’s Effect On Federal Sentences
Proposition 47 reclassified as misdemeanors certain drug- and theft-related
offenses that had previously been designated as either felonies or wobblers (crimes
that can be punished as either a misdemeanor or a felony). Proposition 47 also
permitted previously-convicted defendants to petition the state courts for a “recall of
sentence,” which, if granted, would effectively reclassify their qualifying felonies as
misdemeanors. United States v. Diaz, 838 F.3d 968, 971 (9th Cir. 2016), cert.
denied sub nom. Cruz v. United States, No. 16-7240, 2017 WL 276252 and Vasquez
v. United States, No. 16-7259, 2017 WL 276254 (Jan. 23, 2017) (citing Cal. Penal
Code § 1170.18(a)).3
California voters enacted Proposition 47 in November 2014. Cal. Penal Code § 1170.18
(codifying Proposition 47); see also People v. Rivera, 233 Cal.App.4th 1085, 183 Cal.Rptr.3d 362,
In Diaz, the Ninth Circuit interpreted Proposition 47 as “offering
post-conviction relief by reclassifying certain past felony convictions as
misdemeanors,” but held that it “does not undermine a prior conviction’s
felony-status for purposes of [21 U.S.C.] § 841.” 838 F.3d at 975. Diaz reasoned
that “a state making a change to a state conviction, after it has become final, ‘does
not alter the historical fact of the prior state conviction’ becoming final—which is
what § 841 requires” for a mandatory sentence enhancement under U.S.S.G.
§ 4B1.1. Id. at 974 (citations omitted).
Significantly, Diaz holds that, “even if California decided to give Proposition
47 retroactive effect for purposes of its own state law, that would not retroactively
make [the defendant’s] felony conviction a misdemeanor for purposes of federal
law.” Id. at 975. Diaz thus forecloses relief under Section 2255 where a defendant
seeks federal resentencing based upon reclassification of state felonies as
misdemeanors pursuant to Proposition 47. See, e.g., United States v. Vazcones,
2017 WL 1321309, at *3 (S.D. Cal. Apr. 7, 2017) (“Defendant’s claim fails under
United States v. Diaz, 838 F.3d 968 (9th Cir. 2016), in which the Ninth Circuit held
that Proposition 47 does not retroactively make a defendant’s felony conviction a
misdemeanor for purposes of federal law.”);United States v. Menchaca, 2017 WL
475324, at *4-*5 (N.D. Cal. Feb. 6, 2017) (“Even if defendant demonstrated that one
of the predicate felony convictions underlying his career offender status was reduced
to a misdemeanor under state law, the holding of Diaz, that reclassification pursuant
to Proposition 47 does not apply retroactively for purposes of a federal sentencing
enhancement, controls.”); Perez v. United States, 2017 WL 108037, at *2 (D. Utah
Jan. 11, 2017) (“The Tenth Circuit has held that even where a state has expunged a
prior conviction, the conviction remains relevant to a determination of whether a
defendant has a prior conviction under § 841(b).”).
Accordingly, the reclassification of Torres’ felony theft convictions under
state law does not retroactively convert any felony to a misdemeanor for purposes of
federal law, and his present claim is foreclosed by Diaz. Torres fails to establish
that he is entitled to relief on this basis alone.
Torres Is Not Eligible For Relief Because He Completed
His State Court Sentences
Additionally, because Torres already completed his sentences for the three
reclassified state felonies, he is not eligible for a reduction of his federal sentence
based upon Proposition 47.
Proposition 47 provides distinct forms of relief for persons who are currently
serving time for an offense compared to persons—such as Torres—whose sentences
are completed. “A person currently serving a sentence for a conviction . . . who
would have been guilty of a misdemeanor . . . had this act been in effect at the time
of the offense may petition for a recall of sentence before the trial court that entered
the judgment of conviction in his or her case to request resentencing[.]” Cal. Penal
Code § 1170.18(a) (emphasis added). By contrast, “[a] person who has completed
his or her sentence for a conviction . . . of a felony or felonies who would have been
guilty of a misdemeanor under this act had this act been in effect at the time of the
offense, may file an application before the trial court that entered the judgment of
conviction in his or her case to have the felony conviction or convictions designated
as misdemeanors.” Id. § 1170.18(f) (emphasis added). Torres falls under the
latter category and had his convictions reclassified as misdemeanors, rather than
Although his California felony theft convictions have now been designated as
misdemeanors, Torres completed his sentences for these crimes well before he was
sentenced for the current federal offense on November 13, 2013. The
reclassification of Torres’ state convictions after the completion of those sentences
does not permit him to obtain a resentencing in this Court for his federal crime. See
Bogan v. United States, 2016 WL 948742, at *3 (N.D. Cal. Mar. 14, 2016) (Denying
section 2255 motion, holding that “[a]lthough California has now determined that
his controlled substance offense was a misdemeanor, Proposition 47 does not permit
him to obtain a resentencing once his sentence is complete.”); United States v.
Bakhchadjian, 2015 WL 6697231, at *2 (C.D. Cal. Nov. 3, 2015) (finding that
Proposition 47 did not alter a petitioner’s federal sentence, where the petitioner
sought a misdemeanor re-designation on a sixteen-month state court sentence that he
had already served).
The Section 2255 Motion therefore fails for this additional reason.
Reclassification Does Not Impact The Guidelines Range
In his Reply, Torres states that “the Court should order a new PSR to properly
reflect [his] current correct misdemeanor convictions and remove said prior felony
cited convictions from [his] current PSR that the [Bureau of Prisons] is currently
using as [its] official record to which it is the only record it consider[s] official in
compiling a classification score or history in the classification of an inmate.” Reply
at 2. Torres argues that Proposition 47 applies retroactively—meaning that this
Court must treat each of his three prior convictions as if it was never a felony to
begin with. He maintains that “[w]ith the [three] new misdemeanor convictions
instead of the old felony convictions it effects [his] guideline[s] and criminal history
score and classification.” Reply at 2.
Proposition 47 does not operate in the retroactive manner that Torres claims
with respect to the guidelines. Notably, the drafters of the sentencing guidelines
“were aware that subsequent events could supersede or change a previous state
conviction. In fact, the Guidelines do give retroactive effect to certain subsequent
changes to prior convictions for the purposes of determining career-offender status.”
Gonzalez-Soto v. United States, 2017 WL 838215, at *3 (S.D. Tex. Mar. 2, 2017).4
But nowhere do the guidelines or the application notes carve out an exception for
reclassifying a felony as a misdemeanor. See id. In sum, the guidelines’ “plain
text demonstrates that Proposition 47 does not retroactively affect” Torres’ criminal
history score. Id.
Torres, moreover, does not explain how his reclassification would impact his
criminal history score under the sentencing guidelines. As noted above, under
Ninth Circuit precedent, even if Proposition 47 had retroactive effect for the purpose
of California law, “that would not make [Torres’] felony conviction a misdemeanor
for purposes of a federal statute.” Diaz, 838 F.3d at 975. In any event, criminal
history scores are generally affected by the age of a particular conviction and
sentence, as well as by the length of sentence received. See U.S.S.G. §§ 4A1.1 and
4A1.2(e).5 Although Torres believes that he no longer has “three prior felony
convictions that were used to increase [his] federal sentence,” Reply at 2, that is
simply not the case under federal law. The guidelines do not rely on state law
For example, convictions that are later reversed, vacated, or invalidated because of errors of law
or newly discovered exonerating evidence are not counted. U.S.S.G. § 4A1.2 cmt. n.6.
Similarly, expunged convictions are excluded. Id. at § 4A1.2(j). See also Gonzalez-Soto, 2017
WL 838215, at *3.
According to the Government, even assuming Torres’ claim had merit, there would be no change
in Torres’ criminal history score. That is because, with a criminal history score of 19—criminal
history category VI—a reduction of Torres’ criminal history score based on the reclassifications
would yield a score of 13. See Mem. In Opp’n at 11 n.4. A score of 13 would still leave Torres
in criminal history category VI, and the applicable guidelines would likewise remain unchanged.
See id. at 11 (citing U.S.S.G. Chapter 5, Part A (Sentencing Table)).
definitions of a felony or misdemeanor. Instead, the guidelines employ their own
definition of felony for the purposes of calculating the criminal history category.
See U.S.S.G. § 4A1.2(o).6
Torres presents no sufficient basis for this Court to order a new PSR or to
resentence him based upon the reclassification of his prior state convictions. The
Section 2255 Motion is accordingly denied.
No Evidentiary Hearing Is Required
The Court is required to hold an evidentiary hearing on a Section 2255 motion
“[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). As detailed above, Torres’
claim based upon the application of Proposition 47 lacks merit. The issues raised
here can be conclusively decided on the basis of the evidence in the record, and there
is no reason to conduct an evidentiary hearing on this motion. See, e.g., United
States v. Mejia–Mesa, 153 F.3d 925, 929 (9th Cir. 1998).
Reclassifying the prior offenses as misdemeanors does not change the fact that Torres had three
prior sentences, each over one year and one month in duration. As noted in the PSR, Torres
served sentences of imprisonment for the three reclassified state-court felonies of: (1) 180 days,
plus an additional two years, 90 days based upon probation revocations; (2) two years; and (3) one
year, four months. See PSR ¶¶ 38, 40-41. Each of these was a prior sentence of incarceration
exceeding one year and one month under U.S.S.G. § 4A1.1(a), resulting in three criminal history
points each. Moreover, under U.S.S.G. § 4A1.2(o), a “felony offense” is an offense punishable
by imprisonment of more than a year. Thus, even if the offenses Torres was convicted of in
California were always misdemeanors under California law, each of those three sentences would
still give him a “felony” and three criminal history points each under the guidelines.
Accordingly, he fails to demonstrate any impact the reclassification of his state offenses would
have on his criminal history score under the guidelines.
A Certificate Of Appealability Is Denied
In denying his Section 2255 Motion, the Court must address whether to grant
Torres a Certificate of Appealability (“COA”). See R. 11(a), Rules Governing
Section 2255 Proceedings. A COA may issue “only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
This standard is met only when the applicant shows that “reasonable jurists could
debate whether . . . the petition should have been resolved in a different manner or
that the issues presented were adequate to deserve encouragement to proceed
further.” Slack v. MacDaniel, 529 U.S. 473, 483–84 (2000) (internal quotation
marks omitted). Based on the above analysis, the Court finds that reasonable jurists
could not find the Court’s rulings debatable as to any of the claims raised by Torres.
See, e.g., Bogan, 2016 WL 948742, at *5 (denying COA where petitioner sought a
reduction of his federal sentence—based upon a lower criminal history
category—following reclassification of a state crime from felony to misdemeanor
under Proposition 47). Accordingly, the Court DENIES the issuance of a COA.
For the foregoing reasons, the Court DENIES Torres’ Section 2255 Motion
and DENIES a COA. The Clerk of the Court is directed to enter judgment in favor
of the United States and close the case file.
IT IS SO ORDERED.
DATED: May 10, 2017 at Honolulu, Hawai‘i.
Torres v. United States, CR. NO. 12-00825 DKW; CV. NO. 16-00610 DKW-KJM; ORDER
DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT
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