United States District Court, C.D. California
ORDER RE MOTION FOR RELIEF UNDER 28 U.S.C. §
BEVERLY REID O'CONNELL, JUDGE, UNITED STATES DISTRICT
before the Court is Juan Carlos Alvarez-Herrera's
(“Petitioner”) Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255.
(Dkt. No. 42 (hereinafter, “Mot.” or
“Motion”).) After considering the papers filed in
support of and in opposition to the instant Motion, the Court
deems this matter appropriate for resolution without oral
argument of counsel. See Fed. R. Civ. P. 78; C.D.
Cal. L.R. 7-15. For the following reasons, the Motion is
Underlying Offense Conduct
March 10, 2010, Petitioner was convicted of Assault with a
Deadly Weapon in violation of California Penal Code §
245(a)(1) in the Superior Court of the State of California in
Los Angeles County. (Dkt. No. 9 at 2.) On June 20, 2012,
Petitioner was deported from the United States. (Dkt. No. 9
at 1.) Thereafter, Petitioner voluntarily reentered the
United States without receiving permission from the Attorney
General or the Secretary for Homeland Security. (Dkt. No. 9
at 1.) As reflected in the Indictment, “Petitioner was
found in Los Angeles County” on or about February 27,
2014. (Dkt. No. 9 at 1.)
April 17, 2017, a Grand Jury indicted Petitioner on
violations of 8 U.S.C. §§ 1326(a) and (b)(2) for
being an illegal alien found in the United States following
removal. (See Dkt. No. 9.) Petitioner was arraigned
on Count One of the Indictment on July 24, 2014. (Dkt. No.
14.) Then, on May 5, 2014, Petitioner pleaded guilty to Count
One of the Indictment. (Dkt. No 16.)
28, 2014, Respondent, the United States of America (the
“Government”), filed its position with respect to
the sentencing factors. (See Dkt. No. 22.) In its
filing, the Government calculated a base offense level of 21
and a criminal history of VI, and recommended 77 months of
imprisonment and a three-year term of supervised release.
(Dkt. No. 22 at 4.) This calculation included a 16-point
upward adjustment pursuant to United States Sentencing
Guideline (“U.S.S.G.”) § 2L1.2(b)(1)(A)(ii)
because Petitioner's violation of California Penal Code
§ 245(a)(1) constituted a crime of violence under the
Sentencing Guidelines. (Dkt. No. 22 at 3.)
28, 2014, Petitioner filed his sentencing position paper
agreeing with the Government's base calculation, (Dkt.
No. 23 at 4); however, he argued for a downward variance from
the advisory guideline range, (see Dkt. No. 23 at
4-10). On November 13, 2014, Petitioner submitted a
supplemental brief arguing that his violation of California
Penal Code § 245(a)(1) did not warrant a 16-point upward
adjustment because the underlying offense is not a crime of
violence under U.S.S.G. § 2L1.2(b)(1)(A)(ii). (Dkt. No.
28 at 2.) He cited the Ninth Circuit's decision to grant
a petition for rehearing in United States v.
Jimenez-Arzate, 553 F. App'x. 700 (9th Cir. 2014),
to determine whether § 245(a)(1) constitutes a crime of
violence for purposes of a 16-point upward adjustment under
U.S.S.G. § 2L1.2. (Dkt. No. 28 at 2.) On October 27,
2014, the Court sentenced Petitioner to 77 months of
imprisonment and a three-year term of supervised release.
(Dkt. No. 31.)
after his sentencing, Petitioner appealed the Court's
sentence. (Dkt. No. 33.) In his appeal, Petitioner reiterated
his argument that a violation of § 245(a)(1) does not
constitute a crime of violence for purposes of U.S.S.G.
§ 2L1.2. (See Dkt. No. 40.) The Ninth Circuit
was considering this argument in United States v.
Jimenez-Arzate, 781 F.3d 1062, 1064 (9th Cir. 2015) (per
curiam), at the time; thus, the Ninth Circuit granted
Petitioner's motion to stay appellate proceedings pending
the court's ruling in Jimenez-Arzate. (Dkt. No.
40.) On January 12, 2015, the Ninth Circuit held that §
245(a)(1) “is categorically a crime of violence for
federal sentencing purposes.” Jimenez-Arzate,
781 F.3d at 1064 (citing United States v. Grajeda,
581 F.3d 1186, 1197 (9th Cir. 2009).
light of the Ninth Circuit's holding in
Jimenez-Arzate, the Petitioner filed a motion to
voluntarily dismiss his appeal, and the Ninth Circuit
dismissed Petitioner's appeal on December 1, 2015.
(See Dkt. No. 41.) On September 8, 2016, Petitioner
filed the instant Motion. (See Mot.) The Government
opposed Petitioner's Motion on November 28, 2016.
(See Dkt. No. 50 (hereinafter,
28 U.S.C. § 2255, “[a] prisoner in custody under
sentence of a court established by Act of Congress . . . may
move the court which imposed the sentence to vacate, set
aside, or correct the sentence.” 28 U.S.C. §
2255(a). The statute authorizes the sentencing court to grant
relief if it concludes “that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack.” Id. If the court finds
that relief is warranted, it must vacate and set aside the
judgment, and then do one of four things: (1) discharge the
prisoner, (2) resentence him, (3) grant a new trial, or (4)
“correct the sentence as may appear appropriate.”
Id. § 2255(b); accord United States v.
Barron, 172 F.3d 1153, 1157 (9th Cir. 1999).
district court “must grant a hearing to determine the
validity of a petition brought under [section 2255] unless
the motions and the files and records of the case
conclusively show that the prisoner is entitled to no
relief.” United States v. Blaylock, 20 F.3d
1458, 1465 (9th Cir. 1994) (internal quotation marks
omitted). In deciding whether to grant an evidentiary
hearing, the district court should determine whether,
accepting the truth of the petitioner's factual
allegations, he could prevail on his claim. Id. An
evidentiary hearing is thus required where the petitioner
“allege[s] specific facts, which, if true, would
entitle him to relief, ” and the record “cannot
conclusively show that the petitioner is entitled to no
relief.” United States v. Howard, 381 F.3d
873, 877 (9th Cir. 2004). “Evidentiary hearings are
particularly appropriate when claims raise facts which
occurred out of the courtroom and off the record.”
United States v. Chacon-Palomares, 208 F.3d 1157,
1159 (9th Cir. 2000) (internal quotation marks omitted);
accord De Morais v. United States, No.
10-CR-00557-WHO-1, 2015 WL 2357555, at *4 (N.D. Cal. May 15,
challenges his sentence on several grounds. First, based upon
Welch v. United States, 136 S.Ct. 1257 (2016) and
Johnson v. United States, 135 S.Ct. 2551 (2015),
Petitioner asserts that his sentence is unconstitutional
because the residual clause of the Armed Career Criminal Act
(“ACCA”) is unconstitutionally vague.
(See Mot. at 3 (“Defendant seeks Habeas Relief
that the Sentence was Unconstitutional Under [sic] Johnson v.
United States (Welch v. United States) . . . .”).)
Although somewhat unclearly, Petitioner also appears to argue
that the definition of a “crime of violence” in
U.S.S.G. § 2L1.2(b)(1)(A)(ii) is void for vagueness,
making his 16-point sentencing enhancement unconstitutional.
(Mot. at 1.) Further, Petitioner claims that his sentence
exceeds the maximum permitted by statute. (Mot. at 1
(“I as defendant was given a harsh points