United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE PETITIONER'S
§ 2255 MOTION ECF NO. 200
Lawrence J. O'Neill UNITED STATES CHIEF DISTRICT JUDGE
24, 2016, Petitioner Joe Anthony Gomez Felix
(“Petitioner”) filed a pro se
“Motion to Vacate Set Aside or Correct Sentence Under:
28 U.S.C. § 2255.” ECF No. 200. In his motion,
Petitioner asserts that Johnson v. United States,
135 S.Ct. 2551 (2015), and Welch v. United States,
136 S.Ct. 1257 (2016), may impact the length of his sentence.
Id. Specifically, Petitioner requests that the Court
provide him with copies of his court records, allow him 90
days to file a brief in support of his motion, and allow for
“the timely recording of his 2255 motion.”
Id. at 4.
August 26, 2016, the Court issued an order referring
Petitioner's motion to the Federal Defender's Office
(“FDO”), and setting an initial briefing
schedule. ECF No. 203.
September 19, 2016, the FDO filed notice that it would not
supplement Petitioner's motion and requested withdrawal
as counsel in this case. ECF No. 204.
following reasons, the Court DENIES Petitioner's request
for his court records and sentencing transcript and DENIES
his request for 90 days to file a brief in support of his
January 16, 2016, Petitioner pled guilty to the single-count
Superseding Information, which charged Racketeering
Conspiracy, in violation of 18 U.S.C. §§ 1962(d)
and 1963(a). ECF Nos. 159 (plea agreement) & 167;
Presentence Investigation Report (“PSR”) ¶
to sections 3D1.4(a)-(c) and 2E1.1 of the United States
Sentencing Guidelines (“USSG” or
“Guidelines”), Petitioner's total base
offense level was 35. PSR ¶ 45. Application Note 1 to
USSG § 2E1.1 instructs that when there is more than one
underlying offense for a racketeering charge, each underlying
offense is to be treated as if contained in a separate count
of conviction. Id. ¶ 38. In Petitioner's
case, there were three distinct underlying offenses:
aggravated assault, conspiracy to commit murder, and
conspiracy to distribute methamphetamine. Id. ¶
39. According to the multiple count adjustment rules of USSG
§ 3D1.4, two levels were added to the highest offense
level (33) for the underlying murder conspiracy offense.
Id. ¶ 45. Four levels were added for
Petitioner's leadership role in the offense pursuant to
USSG § 3B1.1(a). Id. ¶ 48.
Petitioner's offense level decreased by three for his
acceptance of responsibility pursuant to USSG §§
3E1.1(a) and (b). Id. ¶¶ 42-43. The total
offense level was 36. Id. ¶ 54. The Guidelines
range for a defendant with an offense level of 36 and a
criminal history category of IV (based on a criminal history
score of 9) is 262 to 327 months. Id. at 26.
However, in accordance with the provisions of
Petitioner's plea agreement, which was pursuant to
Federal Rule of Criminal Procedure 11(c), the parties agreed
to a 151-month sentence in this case. Id.
6, 2016, this Court sentenced Petitioner to a 151-month term
of imprisonment. ECF Nos. 189 & 191. Petitioner did not
appeal his conviction or sentence.
28 U.S.C. § 2255 Section 2255 provides four
grounds upon which a sentencing court may grant relief to a
petitioning in-custody defendant:
 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
 that the sentence was in excess of the maximum authorized