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United States v. Mora-Duardo

United States District Court, S.D. California

June 20, 2017



          Hon. Gonzalo P. Curiel United States District Judge.


         Petitioner, Onesimo Mora-Duardo (“Petitioner”), proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255. Respondent, the United States (“Respondent”), filed a response, opposing the petition. Petitioner filed his reply. For the reasons set forth below, this Court DENIES Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255.


         On December 16, 2014, Petitioner waived indictment and was charged by a criminal information with being a removed alien found in the United States in violation of 8 U.S.C. §§ 1326(a) and (b). (Dkt. No. 9.) On January 28, 2015, Petitioner entered into a plea agreement with Respondent. (Dkt. No. 15.) On January 28, 2015, Petitioner plead guilty to the information before the Honorable Magistrate Judge Nita L. Stormes. (Dkt. No. 16.) Prior to sentencing, both parties and the Probation Officer agreed that the base offense level of 8 should be imposed for a violation of 8 U.S.C. § 1326(a). See U.S.S.G. § 2L1.2(a) (2015). Since Petitioner had a prior felony conviction for a drug trafficking offense of possession of a controlled substance for sale, the Probation Officer's presentence report (“PSR”) recommended a 16-level upward enhancement under the United States Sentencing Guidelines (“U.S.S.G.”) § 2L1.2(b)(1)(A)(i). (See Dkt. No. 18, PSR at 5.) The Government and Defendant agreed that the 16-level enhancement applied under U.S.S.G. § 2L1.2(b)(1)(A)(i) for a prior drug trafficking offense. (Dkt. No. 23, Gov't Sentencing Summary Chart at 3[1]; Dkt. No. 22, D's Sentencing Summary Chart at 1.) At the sentencing hearing, the Court imposed a 16-level upward adjustment for the aggravated felony of a drug trafficking offense. (Dkt. No. 30 at 7.)

         While both the Government and Defendant's sentencing summary chart sought a Guidelines range of 77 months to 96 months prior to assessing any departures, (Dkt. No. 22 at 1; Dkt. No. 23 at 2), at sentencing, the Court reduced Defendant's Criminal History Category from Level VI to V, and taken together with granted departures, resulted in a 57-71 months Guidelines range, and ultimately, sentenced Petitioner to 52 months in custody and 18 months of supervised release. (Dkt. No. 26.)

         On January 26, 2016, Petitioner filed the instant motion. (Dkt. No. 28.) On February 25, 2016, Respondent filed a Response in Opposition to Petitioner's Motion to Vacate, Set Aside or Correct Sentence. (Dkt. No. 32.) On March 17, 2016, Petitioner filed a reply to Respondent's Motion to Deny Motion to Vacate, Set Aside or Correct Sentence. (Dkt. No. 34.)[1]


         Section 2255 authorizes this Court to “vacate, set aside, or correct the sentence” of a federal prisoner 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 section 2255, a prisoner must allege a constitutional or jurisdictional error, or a “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 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         When a Section 2255 motion is made, “unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon.” 28 U.S.C. § 2255. Denial of a Section 2255 motion, without an evidentiary hearing, is warranted if defendant's allegations, “when viewed against the record, do not state a claim for relief, or are so palpably incredible or patently frivolous as to warrant summary dismissal.” United States v. Leonti, 326 F.3d 1111, 1116 (2003); see also Shah v. United States, 878 F.2d 1156, 1158 (1989); United States v. Hernandez, No. 07CV2355 J, 2009 WL 1178664, at *2 (S.D. Cal. May 1, 2009); Lopez- Magana v. United States, No. 10CV2265-BEN, 2013 WL 6055274, at *7 (S.D. Cal. Nov. 13, 2013). “The standard essentially is whether the movant has made specific factual allegations that, if true, state a claim on which relief could be granted.” United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984) (citing United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980)).

         A district court may also instead use discovery or documentary evidence, the judge's own notes and recollection of the trial proceedings and common sense to supplement the record. Shah, 878 F.2d at 1159. “Merely conclusory statements in a § 2255 motion are not enough to require a hearing.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993) (quoting Hearst, 638 F.2d at 1194).


         A. Relief based on Johnson

         In his motion, Petitioner challenges the 16-level enhancement of his sentence pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(i). (Dkt. No. 28.) Petitioner alleges “unconstitutionally (sic) to use, to enhance, vague, to due process, to receive more time.” (Id. at 4.) In liberally construing his petition, it appears Petitioner is arguing that his sentence enhancement is unconstitutional due to the recent United States Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), where the Court held that a residual clause of the Armed Career Criminal Act of 1984 (“ACCA”) is void for vagueness. (Id.) Therefore, Petitioner asks this ...

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