United States District Court, E.D. California
ORDER DENYING PETITIONER'S § 2255 MOTION ECF
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
the Court is Petitioner Richard Diaz's
(“Petitioner” or “Diaz”) motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, filed on October 26, 2016. ECF No. 29. The
Government filed its opposition on December 12, 2016 (ECF No.
33), and Petitioner filed a reply on December 29, 2016 (ECF
No. 34). Following the Supreme Court's decision in
Beckles v. United States, 137 S.Ct. 886 (2017), the
Government filed a supplemental opposition, arguing therein
that Petitioner waived his right to collaterally attack his
sentence and that Petitioner's challenge is no longer
cognizable on collateral attack in light of Beckles.
ECF No. 35. Having considered the parties' briefing and
the record in this case, the Court DENIES Petitioner's
September 21, 2015, Petitioner pled guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C. §
922(g)(1), pursuant to an agreement under Federal Rule of
Criminal Procedure 11(c), as charged in Count 1 of a
single-count Indictment. ECF No. 19. In the Pre-Sentence
Investigation Report (“PSR”), pursuant to section
2K2.1(a)(4)(A) of the United States Sentencing Guidelines
(“Guidelines” or “USSG”), the United
State Probation Office determined that Petitioner qualified
for a sentencing enhancement because he committed the instant
offense subsequent to sustaining a felony conviction for a
“crime of violence” - a 2006 conviction for
assault with a firearm on a person, in violation of section
245(a)(2) of the California Penal Code (“CPC”).
PSR ¶¶ 9, 27; ECF No. 29 at 5. With the
enhancement, Petitioner's base offense level was set at
20. Id. ¶ 9. Three points were subtracted for
acceptance of responsibility. Id. ¶¶
16-17. Therefore, Petitioner's total offense level was
determined to be 17, with a criminal history category of V,
bringing the applicable Guidelines range to 46-57 months.
Id. at 17. On December 14, 2015, this Court
sentenced Petitioner to a 57-month term of imprisonment. ECF
Nos. 24 & 25.
28 U.S.C. § 2255
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
by law; or
 is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). Generally, only a narrow range of
claims fall within the scope of § 2255. United
States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). The
alleged error of law must be “a fundamental defect
which inherently results in a complete miscarriage of
justice.” Davis v. United States, 417 U.S.
333, 346 (1974).
Johnson and Welch
to the Armed Career Criminal Act (“ACCA”), a
defendant must be sentenced to a mandatory minimum of 15
years to life in custody if he has three prior convictions
for “a violent felony or a serious drug offense, or
both.” 18 U.S.C. § 924(e)(1). The ACCA defines