United States District Court, S.D. California
ORDER DENYING MOTION TO VACATE
A. HOUSTON, UNITED STATES DISTRICT JUDGE
Tony Lomeli filed a motion challenging his sentence under 28
U.S.C. section 2255. Respondent filed a response. After a
thorough review of the record and the parties’
submissions, and for the reasons set forth below, this Court
DENIES Petitioner’s motion.
30, 2014, Petitioner was convicted by a jury of unlawful
possession of a firearm in violation of 18 U.S.C. sections
922(g)(1) and 924(a)(2) and conspiracy to distribute
methamphetamine in violation of 21 U.S.C. sections 841(a)(1)
and 846. See Verdict (Doc. No. 588). This Court
sentenced Petitioner to 10 years for unlawful possession of a
firearm and 312 months for conspiracy to distribute
methamphetamine to be served concurrently, followed by 10
years of supervised release. See Judgment (Doc. No.
779). Petitioner appealed the sentence and the Ninth Circuit
Court of Appeals affirmed the Court’s judgment.
Thereafter, Petitioner filed a motion seeking to vacate or
modify his sentence. Later, he filed a request seeking to
amend his motion to add two grounds for relief. The Court
granted the motion and Respondent filed a response.
moves to vacate or modify his sentence based upon the Supreme
Court’s ruling in Johnson v. United States,
135 S.Ct. 2551 (2015), ineffective assistance of counsel and
denial of his Fourteenth Amendment right to equal protection
of the law.
section 2255 motion may be brought to vacate, set aside or
correct a federal sentence on the following grounds: (1) the
sentence “was imposed in violation of the Constitution
or laws of the United States, ” (2) “the court
was without jurisdiction to impose such sentence, ” (3)
“the sentence was in excess of the maximum authorized
by law, ” or (4) the sentence is “otherwise
subject to collateral attack.” 28 U.S.C. §
argues his sentence was enhanced based on a prior felony
conviction under the residual clause invalidated by the
Supreme Court in Johnson.
contends the Johnson decision is inapplicable to
Petitioner’s case because he was not sentenced under
the Armed Career Criminal Act (“ACCA”).
Respondent maintains Petitioner’s guideline range for
unlawful possession of a firearm was not calculated because,
pursuant to USSG § 3D1.3, in the case of grouped counts,
the count yielding the highest offense level is used and, in
Petitioner’s case, that was the conspiracy count. He
received the statutory maximum sentence of ten years for
unlawful possession of a firearm which was not enhanced and
is unrelated to any provision of the Sentencing Guidelines
identically worded to the ACCA clause that the Supreme Court
struck down as unconstitutionally vague in Johnson.
Similarly, Respondent contends Petitioner’s conspiracy
sentence did not relate to any provision of the Sentencing
Guidelines identically worded to the ACCA clause struck down
by the Supreme Court in Johnson. Respondent
maintains the penalty enhancement Petitioner received
pursuant to 21 U.S.C. section 841(b)(1)(A) established a
20-year mandatory minimum for the conspiracy count and was
related exclusively to Petitioner’s prior conviction
for a felony drug offense and argues Petitioner’s
guidelines were calculated under USSG section 2D1.1, which
does not contain a residual clause.
Respondent argues, as the Ninth Circuit has concluded,
Petitioner’s below guideline sentence was substantially
reasonable and falls within the range suggested in his own
sentencing summary chart.
Johnson, the Supreme Court held that the
“residual clause” of the ACCA, which authorized a
sentence enhancement based on a finding that a
defendant’s prior conviction “present[ed] a
serious potential risk of physical injury to another, ”
was unconstitutionally vague and could not be relied upon to
enhance a sentence. 135 S.Ct. 1557. The Court determined the
decision in Johnson was ...