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United States v. Rodriguez

United States District Court, E.D. California

May 18, 2017

UNITED STATES OF AMERICA Plaintiff - Respondent,
v.
RAMON ALEXANDER RODRIGUEZ, Defendant-Petitioner.

          ORDER DENYING DEFENANT'S MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

         I. Introduction

         Defendant Ramon Alexander Rodriguez (“Defendant”), brings the instant motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Defendant originally argued that (1) his sentence is constitutionally infirm in light of the Supreme Court's decision in Johnson v. United States, 576 U.S. __, 135 S.Ct. 2551 (2015) (“Johnson II”), regarding the residual clause of the Armed Career Criminal Act (“ACCA”) and (2) in any event, counsel was ineffective in failing to challenge whether Defendant's felony conviction for evading a police officer with willful or wanton disregard for the safety of persons or property in violation of California Vehicle Code § 2800.2 constitutes a crime of violence for purposes of a career offender enhancement pursuant to United States Sentencing Guidelines (USSG) § 4B1.2 (2014). In light of Beckles v. United States, __ U.S. __, 137 S.Ct. 886 (2017), holding that the Guidelines are not subject to vagueness challenges, therefore “§ 4B1.2(a)(2) … is not void for vagueness, ” Beckles, 137 S.Ct. at 892, Defendant has abandoned his Johnson-based constitutionality challenge. Defendant now pursues only his claim that counsel was ineffective for failing to argue that a violation of California Vehicle Code § 2800.2 is not a crime of violence within the meaning of USSG § 4B1.2.

         For the following reasons, Defendant's motion to vacate will be denied.

         II. Factual Background

         Defendant was charged on August 15, 2013, in a two-count indictment with being a felon in possession of a firearm in violation of 28 U.S.C. 922(g)(1), and possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Doc. 1. On May 18, 2015, Defendant pled guilty to the first count of the indictment-felon in possession of a firearm. Doc. 34.

         On July 20, 2015, Defendant was sentenced. The sentencing court calculated the offense level pursuant to USSG § 2K2.1, which sets the base offense level for prohibited possession of a firearm at level 22 where (1) the offense involves a firearm described in 26 U.S.C. § 5845(a) and (2) the defendant suffered a prior felony conviction for a crime of violence or a controlled substance offense within the meaning of USSG § 4B1.2. See Doc. 34 at 5; USSG § 2K2.1(a)(3). The firearm that Defendant possessed was a shotgun having a barrel or barrels of 13 inches. See Doc. 38 at 5. Such a firearm falls within the description at 26 U.S.C. § 5845(a). See 26 U.S.C. § 5845(a) (listing “a shotgun having a barrel or barrels of less than 18 inches in length”); see also Doc. 34 at 6 (Defendant acknowledges that he possessed a “shotgun with a barrel or barrels of less than 18 inches in length.”) The Government charged and the sentencing court found that the Defendant suffered a prior conviction for evading a police officer that qualified as a crime of violence. See Doc. 38 at 5; Doc. 46 at 4 (adopting recommendations of presentence investigation report).

         From the base offense level of 22, the court applied a three level downward departure for acceptance of responsibility, see Doc. 38 at 5, for a total offense level of 19, Doc. 46 at 4. Defendant's criminal history category is category VI. The resulting sentencing guideline range was 63 to 78 months. The court imposed a sentence of 70 months imprisonment with the Bureau of Prisons, as agree by the parties. Doc. 46 at 4; Doc. 34 at 5. Defendant voiced no objection to this sentencing calculation.

         III. Legal Standard

         Section 2255 allows a prisoner in federal custody to move the sentencing court to vacate, set aside or correct the sentence if he claims the right to be released upon any of the following four grounds: 1) the sentence was imposed in violation of the Constitution or laws of the United States; 2) that the court was without jurisdiction to impose such sentence; 3) that the sentence was in excess of the maximum authorized by law; or 4) is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

         Under Rule 4(b) of the Rules Governing Section 2255 proceedings, the court must initially screen a Section 2255 motion, and dismiss it summarily if it plainly appears that the moving party is not entitled to relief. See U.S. v. Quan, 789 F.2d 711, 715 (9th Cir. 1986). “If it plainly appears from the face of the motion and any annexed exhibits and the prior proceedings in the case that the movant is not entitled to relief in the district court, the judge shall make an order for its summary dismissal.” 28 U.S.C. § 2255 Proc. R. 4(b). The court shall serve notice of the motion upon the U.S. Attorney and grant a hearing on the motion unless the motion and the record of the case “conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b).

         “The facts in a habeas petition need not be so detailed as to establish prima facie entitlement to habeas relief; they are sufficient if they suggest the real possibility that constitutional error has been committed.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996). A defendant “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Id.

         IV. Discussion

         A. Crime of Violence Overview

         At the time of Defendant's sentencing, a crime could qualify as a “crime of violence” for purposes of USSG 4B1.2(a) in three ways: (1) by containing as an element use or attempted use of physical force against another person, (2) by being one of the enumerated offenses, or (3) by “involve[ing] conduct that presents a serious potential risk of physical injury to another.” USSG § 4B1.2(a) (2014).[1] The sentencing court found that Defendant's prior conviction for evading a police officer constituted a crime of violence. See Doc. 38 at 5; Doc. 46 at 4. The sentencing court ...


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