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United States v. Lopez-Florez

United States District Court, E.D. California

May 22, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
MARCO ANTONIO LOPEZ-FLOREZ, Defendant-Petitioner.

          MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S § 2255 MOTION ECF No. 90

          LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE

         I. INTRODUCTION

         On June 27, 2016, Petitioner Marco Antonio Lopez-Florez (“Petitioner”) filed a pro se “Motion for a Sentence Reduction Based on the Johnson and Welch Decisions.” ECF No. 90. Petitioner did not specify whether the motion was pursuant to Title 28, United States Code, Section 2255 (§ 2255”). See id.

         On August 2, 2016, the Court issued an order notifying Petitioner of the Court's intent to re-characterize his motion as a § 2255 motion, referring the motion to the Federal Defender's Office (“FDO”), and setting an initial briefing schedule. ECF No. 91.

         On September 16, 2016, the FDO filed notice that it would not supplement Petitioner's motion and requested withdrawal as counsel in this case. ECF No. 92. In light of the FDO's notice of non-supplementation and withdrawal as counsel, and in an abundance of caution, the Court issued an order notifying Petitioner of its intent to re-characterize his motion as a § 2255 motion because it specifically invokes Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). ECF No. 93. The Court also cautioned Petitioner that its re-characterization of his motion as a § 2255 motion would result in any subsequent § 2255 motion he should wish to file in the future being subjected to the restrictions on “second or successive” motions under the Antiterrorism and Effective Death Penalty Act. Id. (citing Castro v. United States, 540 U.S. 375, 383 (2003)). Specifically, the Court informed Petitioner that he had until November 25, 2016, to file an appropriate notice electing to withdraw the pending motion, or to amend the motion with any further § 2255 claims, or proceed with the understanding that the Court would construe the motion as one brought under § 2255. Id. The Court additionally warned Petitioner that his failure to respond would result in the Court re-characterizing the motion and proceeding to rule upon it. Id. To date, Petitioner has not responded to the Court's order.

         Upon review of Petitioner's motion and the record in this case, the Court has determined that a response by the Government is not necessary. For the reasons that follow, the Court DENIES Petitioner's motion under § 2255.

         II. BACKGROUND

         On March 3, 2011, subsequent to a six-count indictment (ECF No. 24), Petitioner pleaded guilty to Count One, a violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(A), Conspiracy to Manufacture and Distribute Marijuana with Intent to Distribute. See ECF Nos. 41, 44.

         In Petitioner's Presentence Investigation Report (“PSR”), the United States Probation Office determined Petitioner's total offense level to be 27. PSR ¶ 23. According to the PSR, a total of 6, 540 marijuana plants were eradicated during Petitioner's offense and an additional 407.8 grams of marijuana were seized. Id. ¶ 16. The number of marijuana plants and the processed marijuana resulted in a calculation that a total of 654.4078 kilograms of marijuana were involved in Petitioner's offense. Id. ¶ 16. Pursuant to section 2D1.1(c)(6) of the United States Sentencing Guidelines (“USSG” or “Guidelines”)[1], Petitioner's base offense level was 28 (based on the amount of marijuana involved in the case) and his criminal history was category III (based on 4 criminal history points). See id. at ¶¶ 16, 29- 31. Pursuant to § 2D1.1(b)(1), because the offense involved the possession of a firearm, the PSR found appropriate a two-level increase. See id. at ¶ 17. Pursuant to §§ 3E1.1(a) and (b), Petitioner acceptance of responsibility warranted a three-level reduction, for an adjusted total offense level of 27. See id. at ¶¶ 22-23. The Guidelines range for a defendant with an offense level of 27 and a criminal history category III was 87 to 108 months. See id. at ¶ 64; USSG Ch. 5, Pt. A; § 2D1.1. However, because Petitioner's offense involved 6, 540 marijuana plants, he was subject to a statutorily required minimum sentence of ten years. 21 U.S.C. § 841(b)(1)(A)(vii).[2] Pursuant to § 5G1.1(b)[3], the ten-year mandatory minimum overruled the Guidelines range, and the PSR therefore recommended a sentence of 120 months imprisonment. PSR at 14.

         On May 16, 2011, adopting the PSR and accepting the plea agreement, the Court sentenced Petitioner to 120 months in custody. See ECF Nos. 54, 56.

         Petitioner did not appeal his conviction or sentence. This is his first motion under § 2255.

         III. LEGAL FRAMEWORK

         A. 28 U.S.C. § 2255

         Section 2255 provides four grounds upon which a sentencing court may grant relief to ...


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