United States District Court, E.D. California
MEMORANDUM DECISION AND ORDER RE PETITIONER'S
§ 2255 MOTION (ECF NO. 18)
LAWRENCE J. O'NEILL, UNITED STATES CHIEF DISTRICT JUDGE.
27, 2016, Jose Ortega-Sanchez (“Petitioner”), a
federal prisoner proceeding pro se, filed a motion to vacate,
set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. ECF No. 18. Therein, Petitioner raises issues
relating to the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015), and requested
that the Court appoint him counsel to assist him.
August 2, 2016, in accordance with Eastern District of
California General Order 563, the Court appointed the Federal
Defender's Office (“FDO”) to represent
Petitioner in this matter. ECF No. 20. The FDO subsequently
notified the Court that it would not file a supplement to
Petitioner's motion and requested withdrawal as counsel.
ECF No. 25.
then filed a supplement to his § 2255 motion, ECF No.
18, and the Court ordered the Government to file a response,
ECF No. 29. The Government filed its opposition on April 27,
2017, and Petitioner filed a response on July 20, 2017.
reasons below, the Court DENIES Petitioner's motion.
April 18, 2013, Petitioner was indicted on the charge of
being a deported alien in the United States after being
convicted of one or more crimes punishable by a term of
imprisonment exceeding one year, in violation of 8 U.S.C.
§§ 1326(a) and (b)(2). ECF No. 1. This conviction,
which occurred on or around October 5, 2005, was for
second-degree robbery in violation of California Penal Code
(“CPC”) § 211 in Fresno County Superior
Court, for which Petitioner was sentenced to two years'
imprisonment. Id.; ECF No. 15 at 7.
March 17, 2014, Petitioner, assisted by counsel, signed a
plea agreement with the Government, wherein he agreed to
plead guilty to this charge. ECF No. 15. Petitioner waived
his right to trial, as well as to appeal and other
post-conviction remedies. Id. at 3. The Government
agreed to recommend a two or three-level reduction if
Petitioner demonstrated acceptance of responsibility and an
additional two-level reduction if he agreed to an early
disposition of his case. Id. at 6. According to the
agreement, the maximum potential sentence Petitioner could
receive is 20 years. Id. at 7.
to Petitioner's pre-plea presentence investigation report
(“PSR”), his base offense level is 8. ECF No. 10
¶ 7. Pursuant to section 2(b)(1)(A)(ii) of the United
States Sentencing Guidelines (“Guidelines” or
“USSG”), the PSR determined that 16 levels should
be added because he had been previously deported subsequent
to a conviction for a crime of violence (second-degree
robbery, in violation of CPC § 211), for which he served
a two-year term of imprisonment. Id.¶ 8.
Because the PSR anticipated that Petitioner would plead
guilty and admit to the stipulated facts in the plea
agreement, the PSR recommended a three-level reduction
pursuant to U.S.S.G. § 3E1.1(a) and (b), resulting in a
total offense level of 21. Id. ¶¶ 11-12.
With a criminal history category of V and a total offense
level of 21, the PSR determined Petitioner's Guidelines
range to be 70 to 87 months. Id. at 13. However, the
PSR also noted that if a four-level fast track departure
under USSG § 5K3.1 were applied, Petitioner's total
offense level would be 17, and his Guidelines range would be
46 to 57 months. Id. at 14.
plea was entered on March 17, 2014. ECF No. 15. He was
sentenced to a term of 46 months imprisonment on the same
date. Id.; ECF No. 16. His judgment and commitment
was entered on March 20, 2014. ECF No. 17.
did not appeal his conviction or sentence. This is his first
motion under § 2255.
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 ...