The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS & RECOMMENDATIONS
Movant is a federal prisoner, proceeding without counsel, with a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 filed September 15, 2011. (Dkt. No. 109.) Movant challenges his conviction for conspiring to manufacture marijuana. Movant is serving a sentence of 60 months imprisonment. Movant argues that a two-level sentencing enhancement for possession of a firearm should be removed from the presentence report ("PSR") because this enhancement was never charged.
After carefully considering the record, the undersigned recommends that movant's motion be dismissed for the reasons stated herein.
At the outset, the undersigned clarifies that the pending motion is brought pursuant to 28 U.S.C. § 2255. Movant's motion is titled, "Petition for Order Directing Amendment to Pre-Sentence Report (Rule 32 FR Crim. P.)" (Dkt. No. 109.) On September 21, 2011, the Honorable Lawrence K. Karlton construed the motion as a request for federal habeas corpus. (Dkt. No. 108.) Although Judge Karlton did not state under which federal habeas statute he construed this action as having been brought, i.e., 28 U.S.C. §§ 2241 or 2255, it is clear that this action is brought pursuant to 28 U.S.C. § 2255.
Motions contesting the legality of federal sentences are properly brought in 28 U.S.C. § 2255 motions. Hernandez v. Campbell, 204 F.3d 861, 864 (9th Cir. 2000). Motions challenging the execution of federal sentences are properly brought in 28 U.S.C. § 2241 motions. (Id.). The undersigned finds that the claim raised in the instant action challenges the legality of movant's sentence. Moreover, the undersigned has found numerous Ninth Circuit cases treating claims challenging errors in PSRs as having been properly brought pursuant to 28 U.S.C. § 2255. For example, in United States v. Keller, 902 F.2d 1391, 1393-94 (9th Cir. 1990), the Ninth Circuit considered a § 2255 motion raising a claim that the PSR was inaccurate. For these reasons, the undersigned clarifies that movant's motion is brought pursuant to 28 U.S.C. § 2255.
On March 8, 2012, movant was granted thirty days to inform the court whether he objected to the recharacterization of his motion as having been brought pursuant to 28 U.S.C. § 2255. See Castro v. United States, 540 U.S. 375 (2003) (a court must first warn the litigant about the consequences of recharacterizing a pleading as a § 2255 motion). (Dkt. No. 129.) In this order, movant was granted the opportunity to file an amended § 2255 motion raising all of the claims he intended to assert. (Dkt. No. 129.) On March 19, 2012, movant filed a response to the March 8, 2012 order indicating that he did not object to the characterization of his motion as having been brought pursuant to 28 U.S.C. § 2255. (Dkt. No. 130.) Movant did not file an amended motion.
A. Non-Constitutional Sentencing Error
Respondent first argues that movant's claim is waived because he is challenging a non-constitutional sentencing error.
Non-constitutional sentencing errors raised in motions brought pursuant to 28 U.S.C. § 2255 are waived if such errors were not challenged in an earlier proceeding. United States v. Schlesinger, 49 F.3d 483, 485 (9th Cir. 1995); United States v. Keller, 902 F.2d 1391, 1393-94 (9th Cir. 1990) (appellant who did not contest accuracy of PSR prior to filing section 2255 motion waives right to raise the issue through a section 2255 motion). Section 2255 movants waive the right to object in collateral proceedings unless they make a proper objection before the district court or in a direct appeal from the sentencing decision. Schlesinger, 49 F.3d at 483; Keller, 902 F.2d at 1393.
The undersigned agrees with respondent that movant's claim raises a non-constitutional sentencing error. For the reasons stated herein, the undersigned also finds that movant did not raise this claim in an earlier proceeding. Movant did not appeal. There is no evidence that movant raised this claim before the district court. The plea agreement, signed by movant, states that the parties agreed that movant was in possession of a firearm at the time of his arrest. (Dkt. No. 118-5 at 7.) The presentence report, filed under seal, states that firearms were found on properties owned by movant. (Dkt. No. 121-1.) The presentence report also states that the government and movant stipulated to several guideline variables, including "possession of a firearm: 2." (Id. at 6.) At the change of plea hearing, movant did not raise this issue. (Dkt. No. 118-6.) Movant also did not raise this issue at sentencing. (Dkt. No. 118-8.)
For the reasons discussed above, movant's motion should be dismissed because he is raising a non-constitutional sentencing ...