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Alvarez-Herrera v. United States

United States District Court, C.D. California

March 23, 2017





         Pending 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.[1] 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 DENIED.


         A. The Underlying Offense Conduct

         On 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.)

         On 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.)

         B. Sentencing

         On July 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.)

         On July 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.)

         C. Appeals

         The day 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).

         In 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, “Opp'n”).)


         Under 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).

         A 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, 2015).


         Petitioner challenges his sentence on several grounds.[2] 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 enhancement ...

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