Flores-Ramirez v. United States

          ORDER DENYING AS MOOT PETITIONER'S MOTION TO VACATE CONVICTION AND SENTENCE PURSUANT TO 28 U.S.C. § 2255

          JOHN A. HOUSTON, UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         This matter comes before the Court on Petitioner Roberto Flores-Ramirez's (“Petitioner”) motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. See Doc. No. 25. Respondent United States of America filed a Response in Opposition to Petitioner's motion. Doc. No. 27. Under Rule 4 of the Rules Governing § 2255 Proceedings, this Court may dismiss a § 2255 motion if it “plainly appears” from the motion, attached exhibits, and the record of prior proceedings, that petitioner is not entitled to relief. See Rule 4 of the Rules Governing § 2255 Proceedings; see also United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). Having thoroughly considered the parties' briefing, the relevant record, and, in accordance with Rule 4, the Court DENIES as moot Petitioner's motion.

         BACKGROUND

         On April 25, 2014, Petitioner, with the advice and consent of counsel, signed a plea agreement, admitting that he unlawfully re-entered the United States in violation of 8 U.S.C. § 1326. See Doc. No. 9. Specifically, Petitioner admitted as “true and undisputed” that on or about September 21, 2013, Petitioner was previously excluded, deported, and removed from the United States to Mexico and then was subsequently found in the United States. See id.

         On May 6, 2014, a change of plea hearing was held before Magistrate Judge Nita L. Stormes. See Doc. Nos. 6, 11. The magistrate judge also determined that Petitioner's guilty plea was made knowingly and voluntarily, and did not result from force, threats, or promises. Doc. No. 10. On July 25, 2014, Petitioner was sentenced to 27-months in custody followed by two years of supervised release. See Doc. No. 17. Judgment was entered on July 29, 2014. See Doc. No. 18.

         Then, on December 3, 2015, Petitioner, proceeding pro se, filed a habeas motion with the Ninth Circuit on the grounds of newly discovered evidence. Doc. No. 19. On January 6, 2016, the Ninth Circuit determined his appeal was untimely and dismissed Petitioner's case without prejudice. See Doc. Nos. 22, 23, 24. On June 6, 2016, Petitioner, proceeding pro se, filed his motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 with the Court. See Doc. No. 25. Respondent United States of America (“Respondent”) filed a response in opposition on January 9, 2017. See Doc. No. 27.

         DISCUSSION

         1. Legal Standard

         Under 28 U.S.C. § 2255, a federal prisoner may move the court to vacate, set aside, or correct his sentence on the ground that: (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 a 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); United States v. Speelman, 431 F.3d 1226, 1230 n.2 (9th Cir. 2005).

         2. Analysis

         As a threshold matter, the Court is aware that Petitioner was released from Bureau of Prisons custody on June 2, 2017.^[1] Accordingly, Petitioner's motion to vacate, set aside, or correct his sentence must be DENIED AS MOOT. United States v. Kramer, 195 F.3d 1129 (9th Cir. 1999) (“[A] defendant seeking relief under 28 U.S.C. § 2255 . . . must be in custody, [and] . . . claim the right to be released from custody.”). Nevertheless, even if petitioner was still in custody, this Court would DENY his claim for relief.

         Petitioner claims that he is entitled to relief based upon the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016).

         a. ...