United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER DENYING
PETITIONER'S § 2255 MOTION ECF No. 90
LAWRENCE J. O'NEILL UNITED STATES CHIEF DISTRICT JUDGE
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.
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.
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
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.
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.
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
“Guidelines”), 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). Pursuant to
§ 5G1.1(b), the ten-year mandatory minimum overruled
the Guidelines range, and the PSR therefore recommended a
sentence of 120 months imprisonment. PSR at 14.
16, 2011, adopting the PSR and accepting the plea agreement,
the Court sentenced Petitioner to 120 months in custody.
See ECF Nos. 54, 56.
did not appeal his conviction or sentence. This is his first
motion under § 2255.
28 U.S.C. § 2255
2255 provides four grounds upon which a sentencing court may
grant relief to ...