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United States v. Diaz

United States District Court, E.D. California

June 20, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
RICHARD DIAZ Defendant-Petitioner.

          ORDER DENYING PETITIONER'S § 2255 MOTION ECF NO. 29

          LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.

         Before 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 motion.

         BACKGROUND

         On 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.

         LEGAL FRAMEWORK

         A. 28 U.S.C. § 2255

         Section 2255 provides four grounds upon which a sentencing court may grant relief to a petitioning in-custody defendant:

[1] that the sentence was imposed in violation of the Constitution or laws of the United States; or
[2] that the court was without jurisdiction to impose such sentence; or
[3] that the sentence was in excess of the maximum authorized by law; or
[4] 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).

         B. Johnson and Welch

         Pursuant 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 ...


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