December 23, 2013
CLEO PAGE, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DISMISSING MOTION TO VACATE, SET ASIDE, OR CORRECT A SENTENCE
VIRGINIA A. PHILLIPS, District Judge.
Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (Doc. No. 1082) ("Motion"),  filed by Petitioner Cleo Page ("Petitioner") on August 22, 2013. Respondent United States of America ("Respondent") filed a Memorandum in Opposition to the Motion (Doc. No. 1083) ("Opposition") on September 9, 2013. Petitioner filed a Traverse to the Opposition (Doc. No. 1084) ("Traverse") on November 18, 2013. The Court finds the matter appropriate for resolution without a hearing. See Fed.R.Civ.P. 78; Local R. 7-15. After considering the papers filed in support of, and in opposition to, the Motion, the Court DENIES the Motion.
I. PROCEDURAL BACKGROUND
On June 6, 2002, a federal grand jury returned an eight-count indictment against Petitioner and eleven co-defendants, charging them with crimes committed in connection to violations of 21 U.S.C. §§ 846, 841(a)(1), conspiracy to possess with intent to distribute and distribution of cocaine base in the form of crack cocaine. (Mot. at 1; Indictment (Doc. No. 1).) Petitioner pleaded guilty to the conspiracy count (count one) of the indictment on January 17, 2003. (Mot. at 1; Opp'n at 1-2.)
On March 26, 2003, the United States Probation Office released its Presentence Investigation Report ("PSR") to the parties. (Mot. at 2; Opp'n at 2.) The PSR identified two prior felony convictions: (1) on January 26, 1996, for possession of a controlled substance with intent to sell in the Nevada 8th Judicial District, Case Number C121157B, for which Petitioner was sentenced to three years in state prison; and (2) on August 20, 1998, for infliction of injury on spouse in the Riverside County Superior Court, Case Number RIF76200, for which he was sentenced to three years in state prison. (Mot. at 2; Opp'n at 2.) Although Petitioner's offense level based on the amount of crack cocaine involved was 36, the PSR recommended the offense level of 37, applying the level for a career offender under United States Sentencing Guideline ("USSG") § 4B1.1. (Mot. at 2; Opp'n at 2.) After applying a three-level reduction for acceptance of responsibility, the PSR arrived at the total adjusted offense level of 34. (Mot. at 2; Opp'n at 2.) Based on a total adjusted offense level of 34 and a criminal history category of VI, the PSR determined that the applicable sentencing guideline range was 262-327 months. (Mot. at 2; Opp'n at 2-3.)
On July 14, 2003, this Court sentenced Petitioner to a 295-month term of imprisonment, followed by a term of supervised release of five years. (J. & Probation/Commitment Order (Doc. No. 410) at 1.) Petitioner's 295-month term of imprisonment, which was in the middle of the guideline sentencing range, was partly the result of his career offender status. Petitioner subsequently appealed his conviction (see Doc. No. 426), and the Ninth Circuit affirmed the judgment. See United States v. Page, 112 F.Appx. 568 (9th Cir. 2004).
On January 21, 2011, Petitioner filed a Motion for Retroactive Application of Sentencing Guidelines to Crack Cocaine Offense, Pursuant to 18 U.S.C. § 3582 (Doc. No. 1050.) ("Motion for Retroactive Application"). After the Government opposed, the Court held a hearing and denied the Motion for Retroactive Application on May 23, 2011. (Doc. No. 1064.)
Petitioner is currently in custody, serving the sentence imposed in this case. (Mot. at 2; Opp'n at 3.)
II. LEGAL STANDARD
Section 2255 authorizes the Court to "vacate, set aside or correct" a sentence of a federal prisoner that "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255(a). Claims for relief under § 2255 must be based on some constitutional error, jurisdictional defect, or an error resulting in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." United States v. Timmreck , 441 U.S. 780, 783-84 (1979). If the record clearly indicates that a petitioner does not have a claim or that the petitioner has asserted "no more than conclusory allegations, unsupported by facts and refuted by the record, " a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan , 789 F.2d 711, 715 (9th Cir. 1986); see also United States v. Chacon-Palomares , 208 F.3d 1157, 1159 (9th Cir. 2000) ("When a prisoner files a § 2255 motion, the district court must grant an evidentiary hearing unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.'" (quoting 28 U.S.C. § 2255)).
Petitioner asserts the United States Supreme Court's decision in Descamps v. United States , 133 S.Ct. 2276 (2013), requires the Court to vacate his sentence and resentence him without the USSG § 4B1.1 enhancement for career offenders. (Mot. at 5.)
In Descamps, the Supreme Court considered the question of how "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), should be applied to a crime defined more broadly than the generic definition of the crime. 133 S.Ct. at 2281. The Ninth Circuit had held in the same case that a sentencing court may take the "modified categorical approach" when adjudicating on such a question. United States v. Descamps , 466 F.Appx. 563, 565 (9th Cir. 2012). Under the modified categorical approach, a sentencing court conducts a limited examination of documents in the conviction record to determine if there is sufficient evidence to conclude that the defendant was convicted of the elements of the generically defined crime, even if the statute used to convict the defendant contains additional elements. United States v. Aguila-Montes de Oca , 655 F.3d 915, 940 (2011) (en banc) (per curiam). The Supreme Court, however, held in Descamps that "sentencing courts may not apply the modified categorical approach when the crime of which the defendant was [previously] convicted has a single, indivisible set of elements, " rather than a "divisible" set providing alternative elements. 133 S.Ct. at 2282.
Petitioner argues that, pursuant to Descamps's holding, the sentencing enhancement he received in this case for his August 20, 1998 conviction, under California Penal Code § 273.5(a), for infliction of injury on spouse, should be vacated because § 273.5(a) is a divisible statute criminalizing "both morally and non-morally turpitudinous conduct" (Mot. at 4.) Petitioner insists his violation of § 273.5(a) cannot categorically be considered a "crime of violence" under USSG § 4B1.1 (thereby subjecting him to a career offender enhancement), because, implicitly borrowing Descamps's language, a violation of "§ 273.5 is categorically broader than the generic offense" (id. at 5) and "can not qualify as a categorically crime of violence" (Traverse at 1-2). In so arguing, Petitioner appears to assume that the Court took the modified categorical approach in determining that his crime of inflicting injury on his spouse was a "crime of violence" under the § 4B1.1 career offender enhancement, and argues that the conviction record for his § 273.5(a) violation does not provide sufficient evidence to establish that his offense was a crime of violence. ( Id. at 2.)
As Respondent points out in the Opposition, however, the Ninth Circuit has repeatedly held that conviction under California Penal Code § 273.5 "qualifies as a crime of violence, " warranting sentencing enhancement under the USSG. (Opp'n at 4 (citing United States v. Ayala-Nicanor , 659 F.3d 744, 749, 753 (9th Cir. 2011); United States v. Laurico-Yeno , 590 F.3d 818, 820 (9th Cir. 2010).) The Ninth Circuit has declared that, because the use of physical force against the person of another is an element in § 273.5, California's statute criminalizing infliction of injury on one's spouse, a violation of this statute constitutes a categorical crime of violence that does not trigger the use of the modified categorical approach when determining sentencing enhancements under the USSG. See Laurico-Yeno , 590 F.3d at 820; Ayala-Nicano , 659 F.3d at 753.
As a violation of § 273.5 categorically constitutes a crime of violence, Descamps is inapplicable here, and whether the Court took the modified categorical approach at Petitioner's sentencing is irrelevant. Under Ninth Circuit law, the Court properly determined that Petitioner's August 20, 1998 conviction, under § 273.5(a), for infliction of injury on spouse, was a crime of violence, and that Petitioner was subject to the USSG § 4B1.1 enhancement for career offenders. Accordingly, Petitioner's Motion and the files and records of the case conclusively show that he is not entitled to vacatur of his sentence and resentencing without the USSG § 4B1.1 enhancement for career offenders.
As Petitioner's arguments fail, the Court DENIES Petitioner's § 2255 Motion WITH PREJUDICE.