United States District Court, N.D. California
ORDER DENYING MOTION TO REOPEN MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 (dkt. 371)
CHARLES R. BREYER, District Judge.
Petitioner Cornelio Mata Espinoza, a federal prisoner proceeding pro se, seeks to reopen a writ of habeas corpus made under 28 U.S.C. § 2255 and vacate this Court's denial of his second Section 2255 petition on the grounds that the Court misstated the law in finding that Espinoza was properly categorized as a career offender. See Mot. to Reopen (dkt. 371). In his underlying Section 2255 petition, Espinoza argued that he is not a career offender, and therefore, his trial counsel rendered ineffective assistance by advising him to stipulate to such a designation. The Court DENIES the motion because, notwithstanding the Court's misstatement of the law, Espinoza is properly categorized as a career offender, and accordingly, his second Section 2255 petition was properly denied.
On September 23, 2009, Espinoza pled guilty in this Court to conspiracy to distribute controlled substances in violation of 21 U.S.C. §§ 846, 841(b)(1)(A)(i), and 841(b)(1)(A)(viii). See Minute Entry for Sept. 23, 2009 (dkt. 89); see also Plea Agreement (dkt. 90) ¶ 1. Espinoza's plea agreement included a stipulation that Espinoza is a career offender pursuant to United States Sentencing Guidelines ("U.S.S.G.") Section 4B1.1 and therefore his criminal history category is VI. See Plea Agreement ¶ 8.
On June 30, 2010, this Court sentenced Espinoza to 250 months' imprisonment based in part on his categorization as a career offender. See Minute Entry for June 30, 2010 (dkt. 198); Gov't Sentencing Memo. (dkt. 185) at 5 (recounting Espinoza's 2002 and 2004 felony convictions); Tr. of Sentencing as to Espinoza (dkt. 280) at 3:19-20 (Court noting defendant stipulated to the career offender categorization in his plea), 7:18-21 (Espinoza's counsel stating Espinoza "is categorized as a career offender for his convictions in San Francisco Superior Court"). On June 13, 2011, Espinoza timely filed his initial motion to vacate under 28 U.S.C. § 2255, claiming that counsel rendered ineffective assistance because an interpreter was not present during negotiations, and because counsel did not file a notice of appeal despite Espinoza's request to do so. See Mot. to Vacate as of June 13, 2011 (dkt. 297). This Court denied Espinoza's first claim based on evidence that an interpreter was present, but vacated and reentered judgment to allow Espinoza to file a timely appeal. See Order Vacating and Reentering Judgment (dkt. 317). The Ninth Circuit dismissed Espinoza's timely appeal in November 2013 on the grounds that he waived his right to appeal as per the terms of his plea agreement. See Mandate of U.S.C.A. (dkt. 331).
Espinoza filed his second motion to vacate under Section 2255 in December 2013, arguing that his sentence was wrongfully enhanced because trial counsel erroneously advised him to stipulate to being a career offender in his plea agreement. See Mot. to Vacate as of December 4, 2013 (dkt. 333). Espinoza argued that he could not be categorized as a career offender because his 2002 conviction under California Health and Safety Code Section 11351 for possession of heroin for sale was not a felony. Id. ¶ 12. Espinoza did not contest his 2004 felony violation of California Health and Safety Code Section 11352 for the transport/sale of heroin, however. Id. On July 21, 2014, this Court denied Espinoza's motion, finding that the 2002 conviction was in fact a felony conviction of a controlled substance offense. See Order Denying Mot. to Vacate (dkt. 345). The Court held that Espinoza was therefore properly characterized as a career offender and his counsel did not render ineffective assistance "[b]ecause only two prior felony convictions for controlled substance offenses are necessary to characterize a defendant as a career offender, and Espinoza does not contest the validity of his 2004 conviction for purposes of Section 4B1.1." See id. at 7 (citing U.S.S.G. § 4B1.1).
In analyzing whether Espinoza's 2002 conviction was for a controlled substance offense, the Court stated:
A categorical analysis is useful to determine whether a defendant has committed a specific offense within a broad statute, if that specific offense carries with it particular consequences at sentencing. Here, it is immaterial precisely what the nature of Espinoza's 2002 felony offense was, as any conduct that violates California Health and Safety Code Section 11351 is by definition a controlled substance offense.
Id. (emphasis added). Espinoza now asks this Court to reopen his motion to vacate because the statement "any conduct that violates... Section 11351 is by definition a controlled substance offense" misstates the law. For the reasons discussed below, the Court agrees that said statement was erroneous. However, because the Court applied a modified categorical approach and looked to the complaint and judicial record of the 2002 conviction in categorizing it as a felony conviction of a controlled substance offense-rather than relying solely on Espinoza's having been convicted of an offense under Section 11351-the Court properly found that Espinoza is a career offender.
II. LEGAL STANDARD
A defendant is a career offender for purposes of sentencing if:
(1) [T]he defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). A controlled substance offense is defined as:
[A]n offense under federal or state law, punishable by imprisonment for a term exceeding one year, that prohibits the manufacture, import, export, distribution, or dispensing of a controlled substance (or a counterfeit substance) or the possession of a controlled substance (or a counterfeit ...