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Mondragon-Hernandez v. United States

United States District Court, S.D. California

March 22, 2017

JULIAN MONDRAGON-HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER: (1) DENYING § 2255 MOTION TO VACATE, SET ASIDE, OR CORRECT THE SENTENCE; AND [DOC. NOS. 240, 246 IN 10-CR-3173.] (2) GRANTING CERTIFICATE OF APPEALABILITY

          MARILYN L HUFF, DISTRICT JUDGE

         On October 7, 2016, Petitioner/Defendant Julian Mondragon-Hernandez, represented by Federal Defenders, filed in the United States District Court for the Southern District of California a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence by a person in federal custody. (Doc. Nos. 240, 246.) On December 19, 2016, the Government filed a response in opposition to Defendant's motion. (Doc. No. 257.) On January 12, 2017, Defendant filed a reply in support of his motion. (Doc. No. 259.) On March 22, 2017, the Court took the matter under submission. (Doc. No. 263.) For the reasons discussed below, the Court denies Defendant's § 2255 motion.

         Background

         On August 5, 2010, the Government filed an indictment charging Defendant, among others, with a single count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846. (Doc. No. 1.) On April 13, 2011, the Government filed a six-count superceding indictment charging Defendant in count 1 with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 846, and criminal forfeiture, in violation of 18 U.S.C. § 924(d) and 28 U.S.C. § 2461(c); in count 2 with conspiracy to affect commerce by robbery and extortion, in violation of 18 U.S.C. § 1951(a); in count 3 with possession of a firearm in furtherance of a crime of violence and a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(i) and aiding and abetting in violation of 18 U.S.C. § 2; and in count 4 with illegal alien in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(5)(A) and 924(a)(2). (Doc. No. 51.)

         Defendant proceeded to a jury trial. On November 17, 2011, the jury returned a verdict finding Defendant guilty of all four counts charged against him in the superceding indictment. (Doc. Nos. 97, 103.)

         Prior to sentencing, U.S. Probation prepared a Presentence Report. (Doc. No. 116.) The PSR calculated Defendant's total combined offense level as 36 with a criminal history category of II for counts 1, 2, and 4, resulting in an advisory guidelines range of 210-262 months for those counts. (Id. at 11-12, 14.) The PSR also reported that Defendant's conviction for violation of § 924(c) subjected him to a mandatory 60-month sentence to be served consecutive to the other counts. (Id. at 12, 14.) On May 28, 2012, the Government filed a sentencing summary chart recommending a sentence of 210 months in custody for counts 1, 2 and 4 and the mandatory 60 months in custody for count 3, resulting in a total custodial sentence of 270 months. (Doc. No. 156.) On June 10, 2012, Defendant filed a sentencing summary chart recommending a sentence of 120 months. (Doc. No. 161.)

         The Court held a sentencing hearing on June 14, 2012. (Doc. Nos. 163, 185.) At sentencing, the Court calculated Defendant's total combined adjusted offense level for counts 1, 2, and 4 as level 34 and his criminal history category as II, resulting in an advisory guidelines range of 168-210 months. (Doc. No. 185 at 24.) After considering the § 3553(a) factors, the Court sentenced Defendant to 168 months in custody for counts 1 and 2 and 120 months in custody for count 4 with counts 1, 2 and 4 to run concurrently and to the mandatory 60 months in custody for count 3 to run consecutive to the other counts, resulting in a total custodial sentence of 228 months. (Id. at 25, 31.) The Court entered judgment on June 18, 2012. (Doc. No. 168.)

         On June 20, 2012, Defendant appealed his conviction and sentence. (Doc. No. 169.) On November 27, 2013, the Ninth Circuit affirmed Defendant's conviction and sentence. (Doc. No. 208.)

         On January 20, 2015, Defendant filed a motion pursuant to 28 U.S.C. § 2255 to vacate his federal prison sentence, alleging claims of ineffective assistance of counsel. (Doc. No. 218.) On April 22, 2015, the Court denied Defendant's § 2255 motion and denied Defendant a certificate of appealability. (Doc. No. 230.) Defendant sought a certificate of appealability from the Ninth Circuit, (Doc. No. 231), and on February 26, 2016, the Ninth Circuit denied Defendant's request for a certificate of appealability. (Doc. No. 233.)

         By the present motion, Defendant again moves pursuant to 28 U.S.C. § 2255 to vacate his federal prison sentence.[1] (Doc. No. 240.) In the motion, Defendant argues that his 60-month sentence for possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. § 924(c)(1) should be vacated because under the Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015), conspiracy to commit Hobbs Act robbery under 18 U.S.C. § 1951(a) no longer qualifies as a “crime of violence” under § 924(c)(3). (Id. at 1-2, 4-15.)

         Discussion

         I. Legal Standards for § 2255 Motion

         A sentencing court may “vacate, set aside or correct the sentence” of a federal prisoner if it concludes that “the sentence 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 a constitutional or jurisdictional error, “‘a fundamental defect which inherently results in a complete miscarriage of justice, '” or a proceeding “‘inconsistent with the rudimentary demands of fair procedure.'” United States v. Timmreck, 441 U.S. 780, 783-84 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)). A district court may deny a § 2255 motion without holding an evidentiary hearing if “the petitioner fails to allege facts which, if true, would entitle him to relief, or the petition, files and record of the case conclusively show that he is entitled to no relief.” United States v. Rodriguez-Vega, 797 F.3d 781, 792 (9th Cir. 2015); see 28 U.S.C. § 2255(b); United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986) (“Where a prisoner's [§ 2255] motion presents no more than conclusory allegations, unsupported by facts and refuted by the record, an evidentiary hearing is not required.”).

         II. ...


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