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United States v. Ortega-Sanchez

United States District Court, E.D. California

September 6, 2017

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
JOSE ORTEGA-SANCHEZ, Defendant-Petitioner.

          MEMORANDUM DECISION AND ORDER RE PETITIONER'S § 2255 MOTION (ECF NO. 18)

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

         I. INTRODUCTION

         On June 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. Id.

         On 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.

         Petitioner 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.

         For the reasons below, the Court DENIES Petitioner's motion.

         II. BACKGROUND

         On 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.

         On 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.

         According 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.

         Petitioner's 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.

         Petitioner did not appeal his conviction or sentence. This is his first motion under § 2255.

         III. 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 ...

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