Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lomeli v. United States

United States District Court, S.D. California

September 18, 2019

TONY LOMELI (1), Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO VACATE

          JOHN A. HOUSTON, UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         BACKGROUND

         On May 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.

         DISCUSSION

         Petitioner 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.

         I. Legal Standard

         A 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. § 2255(a).

         II. Analysis

         A. Johnson

         Petitioner argues his sentence was enhanced based on a prior felony conviction under the residual clause invalidated by the Supreme Court in Johnson.

         Respondent 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.

         Additionally, 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.

         In 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.