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Lopez v. United States

United States District Court, S.D. California

April 4, 2018

PRISCILLA LOPEZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          HON. ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.

         Movant, Priscilla Lopez, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct her Sentence pursuant to 28 U.S.C. § 2255. Respondent, the United States (“the government”), filed a response, opposing the motion. For the reasons set forth below, the Court DENIES Movant's Motion.

         BACKGROUND

         On December 19, 2013, the government filed a one-count indictment charging Movant with violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)A(vii) and 846, Conspiracy to Possess with Intent to Distribute Controlled Substances, and 21 U.S.C. § 853, Criminal Forfeiture. (Docket No. 1.)[1] Movant entered into a plea agreement with the government, in which she “waive[d], to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, including any restitution order.” (Docket No. 46 at p. 8.) Movant thereafter pleaded guilty and came before this Court for sentencing. (Docket Nos. 47, 55.)

         The parties agreed to jointly recommend Movant's sentencing be based on the following U.S. Sentencing Guidelines Base Offense Level, Specific Offense Characteristics, Adjustments, and Departures:

1. Base Offense Level [USSG § 2D1.1(c)(11)] 26
2. Drugs into Jail [USSG § 2D1.1(b)(4)]
3. Acceptance of Responsibility [USSG § 3E1.1] -3

         (Docket No. 46 at p. 6.) At sentencing, the government complied with the plea agreement by recommending the above Guideline calculations. (Docket No. 63.) The government further determined that these calculations produced an Adjusted Offense Level of 25, which in combination with Movant's Criminal History Category of VI, produced a Guideline Range of 110 to 137 months' custody. (Id.) The government additionally recommended a downward variance that was equivalent to a two-level reduction in the Base Offense Level in exchange for Movant's agreement not to seek a further reduced sentence in the event the Federal Sentencing Guidelines were amended on November 1, 2014 to revise the Drug Quantity Table in USSG § 2D1.1(c). (Id.) This reduced the Guideline range to 92 to 115 months' custody. (Id.) The government then recommended Movant receive a sentence of 90 months' custody. (Id.)

         Movant concurred with the government's Guideline calculations, argued for a two-level reduction in the Base Offense Level for alternative reasons, and likewise recommended a sentence of 90 months' custody. (Docket Nos. 65, 66.) The Court ultimately sentenced Movant to 90 months in custody and a term of supervised release of five years. (Docket Nos. 67, 70.)

         On May 9, 2016, Movant filed the instant motion. (Docket No. 77.) Her filing is captioned as a “Modification/Reduction pursuant to Johnson 135 S.Ct. 2563(2015) V. United States & Welch V. United States 4B1.2(a)2, 4B1.1(a) & 4A1.2 Provision 4A1.1(a), (b), (c) [sic].” (Id.) In essence, Movant argues she is entitled to a reduced sentence pursuant to the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 163 S.Ct. 1257 (2016).

         LEGAL STANDARD

         Under section 2255, a movant is entitled to relief if the sentence: (1) was imposed in violation of the Constitution or the laws of the United States; (2) was given by a court without jurisdiction to do so; (3) was in excess of the maximum sentence authorized by law; or (4) is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005). If it is clear the movant has failed to state a claim, or has “no more than conclusory allegations, unsupported by facts and refuted by the record, ” a district court may deny a § 2255 motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711, 715 (9th Cir. 1986).

         DISCUSSIO ...


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