United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255
ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE.
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.
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.
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.)
parties agreed to jointly recommend Movant's sentencing
be based on the following U.S. Sentencing Guidelines Base
Offense Level, Specific Offense Characteristics, Adjustments,
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
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.
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,
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).
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.