United States District Court, N.D. California
ORDER DENYING MOTION TO DISMISS INDICTMENT AND
RESPONDING TO INQUIRY RE PROPOSITION 47
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
a federal prisoner currently incarcerated in Giles W. Dalby
Correctional Institution in Post, Texas, has filed (1) a pro
se motion “under Apprendi’s law” to dismiss
the indictment against him and (2) a letter asking if he is
eligible for a sentence reduction under California’s
Proposition 47. For the reasons discussed below,
defendant’s motion is Denied. This order also concludes
that defendant is not eligible for a sentence reduction under
February 28, 2012, defendant Miguel Gutierrez pled guilty to:
(1) conspiracy to distribute methamphetamine; (2) possession
of methamphetamine with intent to distribute; (3) conspiracy
to distribute heroin; and (4) possession of heroin with
intent to distribute. In the plea agreement, he waived the
following: “I agree not to file any collateral attack
on my conviction or sentence, including a petition under 28
U.S.C. § 2255 or 28 U.S.C. § 2241, or motion under
18 U.S.C. § 3582, at any time in the future after I am
sentenced, except that I reserve my right to claim that my
counsel was ineffective in connection with the negotiation of
this Agreement or the entry of my guilty plea” (Exh. 2,
PP 5). On May 15, 2012, the Court sentenced Gutierrez to 144
months (Dkt. No. 41). Gutierrez did not appeal.
18, 2015, Gutierrez moved for a reduction to his sentence
under 18 U.S.C. Section 3582(c)(2) and Amendment 782 of the
Guidelines (Dkt. No. 68). The parties stipulated to a
sentence reduction from 144 months to 135 months.
August 28, 2015, Gutierrez sought to dismiss the indictment
against him, contending that the indictment failed to give
adequate notice as to the type and amount of drugs charged
(Dkt. No. 79). On September 8, 2015, an order asked the
government to respond to the motion. On April 28, 2016,
Gutierrez filed a letter asking if he is “eligible for
the #47 reduction of the new law that is to come into effect
this upcoming May 18, 2016” (Dkt. No. 81). On May 5,
2016, and again on Jun 6, 2016, the Court asked probation and
the government to respond to Gutierrez’s 2016 letter.
On June 8, 2016, the government responded to the motion and
letter, arguing that Gutierrez’s motion to dismiss the
indictment should be denied and that he is not eligible for a
further reduction in his federal sentence under
California’s Proposition 47. On June 13, 2016,
probation filed a response to the 2016 letter concluding that
Gutierrez is not eligible for a reduction to his federal
sentence under Proposition 47 (Dkt. No. 81).
Motion to Dismiss the Indictment.
seeks dismissal of the indictment against him “under
Apprendi’s law, ” contending that the indictment
failed to give adequate notice as to the type and amount of
drugs charged. The indictment, however, specified the type
and amount of drugs charged: for Count 1, the indictment
specified 50 grams or more of methamphetamine; for Count 2,
the indictment specified 50 grams or more of methamphetamine;
for Count 3, the indictment specified 100 grams or more of
heroin; and for Count 4, the indictment specified 100 grams
of heroin (Dkt. No. 1). As such, this order Denies
Gutierrez’s motion to dismiss the indictment.
government urges the Court to treat defendant’s motion
to dismiss as a Section 2255 motion. This order need not do
so but notes that Gutierrez expressly waived his right to
bring a Section 2255 collateral attack on his conviction and
sentence (Exh. 2, ¶ 5).
Sentence Reduction Under Proposition 47.
also asks whether he is “eligible for the #47 reduction
of the new law that is to come into effect this upcoming May
18, 2016” (Dkt. No. 81). This order assumes that
Gutierrez is asking for a reduction of his conviction under
Proposition 47, the 2014 ballot initiative that allowed
California courts to reclassify certain felony convictions as
misdemeanor convictions. This order concludes that Gutierrez
is not entitled to relief under Proposition 47.
First, Gutierrez provides no evidence that he has
successfully applied to a California court to reduce his
prior felonies to misdemeanors. Second, even if he
had, our court of appeals has concluded that the state
reduction of a ...