United States District Court, E.D. California
31, 2013, petitioner Jose Jesus Reyes-Gallaga Vargas pled
guilty to (1) possession with intent to distribute
methamphetamine, in violation of 21 U.S.C. § 841(a)(1)
(“Count 1”), and (2) dealing firearms without a
license, in violation of 18 U.S.C. § 922(a)(1)(A)
(“Count 5”). See ECF Nos. 39, 41. In its
presentence investigation report, the U.S. Probation Office
recommended the court impose a two-point enhancement under
United States Sentencing Guideline (“USSG”)
§ 2D1.1(b)(1), which provides, “[i]f a dangerous
weapon (including a firearm) was possessed, increase by 2
levels.” See ECF No. 43 (sealed). On December
4, 2013, this court sentenced petitioner to imprisonment for
a term of 120 months on Count 1 and a term of 60 months on
Count 5, to be served concurrently for a total term of 120
months. ECF No. 50. The court entered judgment on December
10, 2013. ECF No. 51. On March 1, 2016, the court granted
petitioner's motion under 18 U.S.C. § 3582(c)(2),
reducing petitioner's 120 month sentence to 108 months.
ECF No. 72.
27, 2016, petitioner filed the instant motion to vacate, set
aside, or correct his sentence under 28 U.S.C. § 2255,
challenging the two-point USSG § 2D1.1(b)(1) enhancement
applied in his sentencing. ECF No. 73. In his motion,
petitioner argues (1) the sentence enhancement was
erroneously applied in light of Johnson v. United
States, __ U.S. __, 135 S.Ct. 2551, 2555 (2015), and (2)
petitioner's counsel in his direct appeal failed to raise
the Johnson issue, and thus provided ineffective
assistance of counsel. ECF No. 73 at 4-6. The court referred
the motion to the Office of the Federal Defender. ECF 76.
Because petitioner ultimately elected to pursue the motion
without counsel, ECF No. 82, the court denied as moot
petitioner's motion for appointment of counsel, ECF No.
84. On May 30, 2017, while the current motion was pending,
petitioner filed a second § 2255 motion. See
ECF No. 87. On October 16, 2017, the United States of America
moved to dismiss petitioner's second § 2255 motion,
or, in the alternative, moved for an extension of time to
respond. ECF No. 91.
Johnson v. United States
held the residual clause of the Armed Career Criminal Act, 18
U.S.C. § 924(e)(1) (“ACCA”), imposing a
minimum 15-year sentence for individuals with three or more
prior “violent felony” convictions, is
unconstitutionally vague and violates due process.
See 135 S.Ct. at 2557-60. The “residual
clause” defined “violent felony” to include
a felony that “involves conduct that presents a serious
potential risk of physical injury to another.” See
Id. at 2557 (“violent felony” clause
rendered unconstitutionally vague because it “leaves
grave uncertainty about how to estimate the risk posed by a
crime”). The Johnson decision applies
retroactively. Welch v. United States, __ U.S. __,
136 S.Ct. 1257, 1265 (2016).
petitioner argues his USSC § 2D1.1(b)(1) sentence
enhancement fails for vagueness and violates his due process
rights under Johnson. ECF No. 73 at 4. The record
does not support petitioner's argument. The court imposed
petitioner's sentence after faithful application of the
USSG and without reference to the ACCA. See ECF No.
43 at 8 (sealed presentence investigation report applying
2-level enhancement under USSG 2D.1.1(b)(1)).
Johnson and its progeny thus have no effect on
petitioner's sentence. See United States v.
Garcia-Chavez, No. 2:09-CR-00407-KJM-4, 2017 WL 3720364,
at *2 (E.D. Cal. Aug. 29, 2017) (rejecting Johnson
claim where no ACCA enhancement applied); Barajas v.
United States, No. 13- 0026, 2016 WL 4721481, at *2
(E.D. Cal. Sept. 8, 2016) (same); Rubino-Zamora v. United
States, 11-223, 2016 WL 4505750, at *2 (N.D. Tex. Aug.
29, 2016) (same); United States v. Johnson, No.
15-006, 2016 WL 2869774, *3 (D. Mont. May 16, 2016)
(Johnson inapplicable to case when, inter alia,
“[n]othing in this case involved a ‘residual
clause' or a ‘crime of violence'” under
the ACCA). The court's application of the enhancement
does not run afoul of Johnson.
Ineffective Assistance of Counsel
relevant part, the Sixth Amendment guarantees criminal
defendants the right to the effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668 (1984). Here,
petitioner has not demonstrated Johnson applies to
his sentence. Accordingly, his ineffective assistance of
counsel claim premised on his attorney's failure to
invoke Johnson on direct appeal cannot survive.
Petitioner's Second Motion under 28 U.S.C. §
filed a second motion under 28 U.S.C. § 2255 while the
current motion was pending. See ECF No. 87. “A
petitioner is generally limited to one motion under §
2255, and may not bring a ‘second or successive
motion' unless [the petitioner] meets the exacting
standards of 28 U.S.C. § 2255(h).” United
States v. Washington, 653 F.3d 1057, 1059 (9th Cir.
2011). Under the statute:
second or successive motion must be certified as provided in
section 2244 by a panel of the appropriate court of appeals
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that no reasonable
factfinder would have found the movant guilty of the offense;
(2) a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
28 U.S.C. § 2255(h). Petitioner's second motion does
not indicate he complied with the § 2255(h)
certification requirement. Accordingly, the court lacks
jurisdiction to consider defendant's second § ...