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Hernandez v. United States

United States District Court, S.D. California

June 7, 2017

JANETTE HERNANDEZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 3:12-cr-00236-GPC-34

          ORDER DENYING PETITIONER'S MOTION TO VACATE, MODIFY, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 [ECF NO. 2]

          HON. GONZALO P. CURIEL DISTRICT JUDGE

         On March 15, 2013, United States District Judge Irma E. Gonzalez sentenced Petitioner Janette Hernandez (“Petitioner”) to 120 months of imprisonment and 5 years of supervised release based on her guilty plea for conspiracy to conduct enterprise affairs through a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). (Dkt. No. 953; Dkt. No. 965 at 1-3.) Petitioner now brings this motion to vacate, modify, or correct her sentence pursuant to 28 U.S.C. § 2255 (“§ 2255”) based on Amendment 794 to United States Sentencing Guidelines (“U.S.S.G.”) § 3B1.2.

         For the following reasons, this Court DENIES Petitioner's motion to vacate, modify, or correct her sentence.

         BACKGROUND

         On July 27, 2012, Petitioner Janette Hernandez signed a plea agreement, pleading guilty to participating in a conspiracy or agreement of an enterprise, the Mexican Mafia, through a pattern of racketeering with knowledge of the enterprise's purpose. (Dkt. No. 606 at 2.) Petitioner signed the agreement with the advice and consent of counsel and waived her right to collaterally attack her conviction or sentence. (Dkt. No. 606 at 10.) Following the recommendation provided by the United States Probation Office in the Pre-Sentence Report, (Dkt. No. 695 at 19), Judge Gonzalez sentenced Petitioner to 120 months of imprisonment and 5 years of supervised release, (Dkt. No. 953; Dkt. No. 965 at 2-3).

         Petitioner has previously filed two motions to reduce her sentence. First, on May 29, 2015, Petitioner, proceeding pro se, filed a motion to reduce her sentence pursuant to 18 U.S.C. § 3582 (“§ 3582”) based on Amendment 782 to the U.S.S.G. (Dkt. No. 1850 at 1.) This motion was denied because making such an adjustment would not affect the final sentencing offense level under U.S.S.G. 3D1.4(b), and thus the sentencing guideline calculations would not change. (Dkt. No. 2011 at 2.) Second, on May 19, 2016, Petitioner, proceeding pro se, filed a motion to reduce her sentence pursuant to § 2255 based on Johnson v. United States, 135 S.Ct. 2551 (2015). (Dkt. No. 1955.) This motion was also denied because Johnson would have had no bearing on the sentencing adjustments made by the sentencing judge. (Dkt. No. 1958 at 2.)

         On December 6, 2016, Petitioner, proceeding pro se, brought this motion to vacate, modify, or correct her sentence pursuant to § 2255 based on Amendment 794 to U.S.S.G. § 3B1.2. (Dkt. No. 2026.) Petitioner argues that, based on United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), Amendment 794 should be applied retroactively for a minor role reduction. (Dkt. No. 2026 at 1.) Respondent United States then filed its response in opposition to Petitioner's motion to vacate, claiming that (1) this motion to reduce the sentence cannot be brought under § 2255; (2) even if the motion was properly brought under § 3582, Amendment 794 cannot be applied retroactively; and (3) Petitioner's plea agreement included a waiver of her right to collaterally attack her sentence. (Dkt. No. 2035.)

         DISCUSSION

         I. 28 U.S.C. § 2255 Motion

         Petitioner is arguing for a retroactive reduction to her sentence under 28 U.S.C. § 2255 based on Amendment 794 to U.S.S.G. § 3B1.2. Section 2255, though, provides that a federal prisoner seeking relief from a custodial sentence “may move the court which imposed the sentence to vacate, set aside or correct the sentence” only on “the ground 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[.]” 28 U.S.C. § 2255(a). To warrant relief under § 2255, a prisoner must allege a constitutional, jurisdictional, or otherwise “fundamental defect which inherently results in a complete miscarriage of justice [or] an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783- 84 (1979) (internal citation and quotation marks omitted).

         Petitioner's assertion, here, does not involve violations of the Constitution or laws of the United States, a lack of jurisdiction, or a sentence in excess of authorized maximums. Thus, because Petitioner has not alleged any fundamental defect resulting in the miscarriage of justice, a § 2255 claim cannot be used to apply Amendment 794.

         II. Applying Amendment 794 Retroactively

         A claim regarding Amendment 794 can instead be brought under 18 U.S.C. § 3582(c), as a motion to reduce Petitioner's sentence. Therefore, because pro se filings are to be construed liberally, Petitioner's claim will be construed as an allegation under § 3582. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         The Ninth Circuit found that the language of Amendment 794 implied that it was intended to be a clarifying amendment. See United States v. Quintero-Leyva, 823 F.3d 519, 523 (9th Cir. 2016) (finding in part that Amendment 794 could be applied retroactively on direct appeal because it was a clarifying amendment). However, clarifying amendments cannot be applied retroactively when it comes to § 3582 claims. See United States v. Stokes, 300 F. App'x. 507, 508 (9th Cir. 2008) (“[E]ven if the amendment at issue were a ‘clarifying amendment' that applied retroactively, such retroactive calculation could only ...


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