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United States v. Ochoa-Garcia

United States District Court, D. Nevada

October 10, 2017



          ROBERT C. JONES United States District Judge

         Pending before the Court is Petitioner Juan Ochoa-Garcia's ("Defendant") motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. (ECF No. 208.) For the reasons given herein, the Court denies the motion.


         On November 13, 1998, Defendant pled guilty to Count 1 of the five-count Superseding Indictment, for conspiracy to possess methamphetamine, cocaine, and marijuana with intent to distribute, 21 U.S.C. §§ 846, 841(a)(1). (ECF No. 116.) His sentence was pronounced on December 15, 1999. (ECF No. 176.) At the sentencing hearing, Judge Flagen found that Defendant's base offense level was 32 and imposed a two-level increase for Defendant's role as a manager or supervisor in criminal activity. See U.S. Sentencing Guidelines Manual § 3B1.1(c) (U.S. Sentencing Comm'n 1998). Defendant's criminal history category was also determined to be IV, based on two prior convictions in California state court and the fact that the instant offense had been committed while Defendant was still under a criminal justice sentence, See Id. at §4 A 1, 1. However, because Defendant qualified as a career offender under § 4B 1, 1 of the Sentencing Guidelines, the Court was required to apply an offense level of 37 (because the statutory maximum sentence for the instant offense was life imprisonment under 21 U.S.C, § 841(b)(1)(A)(viii)) and a criminal history category of VI. Accordingly, the applicable guideline range for imprisonment was 360 months to life, U.S. Sentencing Guidelines Manual 310 (U.S. SENTENCING Comm'N 1998). Judge Hagen pronounced a sentence of 360 months' imprisonment followed by five years of supervised release.

         Defendant's status as a career offender was based on two prior felony convictions in California, both for the possession of marijuana for sale. Defendant now informs the Court that he has succeeded in having these offenses reclassified as misdemeanors pursuant to California's Proposition 64, also known as the Control, Regulate and Tax Adult Use of Marijuana Act ("AUMA"), an initiative approved by California voters on November 8, 2016. Defendant asserts: "On May 4, 2017 the Deputy District Attorney agreed to redesignate California Case No. SC 3353A and S.C. 30751A from felony to misdemeanor and on May 16, 2017, the California State Court granted the motion and officially redesignated the marihuana offense as misdemeanor." (Mot. Vacate 2, ECF No. 208.) On this basis, Defendant moves to reopen his federal sentence, arguing that he no longer qualifies as a career offender due to the reclassification of his state-court felony convictions.


         a. Section 2255 Motions Generally

         Section 2255 provides, in pertinent part: "A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Under section 2255, "a district court must grant a hearing to determine the validity of a petition brought under that section, '[u]nless the motions and the files and records of the case conclusively show that the prisoner is entitled to no relief, '" United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994) (quoting 28 U.S.C. § 2255). The court may deny a hearing if the movant's allegations, viewed against the record, fail to state a claim for relief or "are so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal quotations omitted), cert, denied, 520 U.S. 1269, 117 (1997). To earn the right to a hearing, therefore, the movant must make specific factual allegations which, if true, would entitle him to relief. See Id. Mere conclusory statements in a section 2255 motion are insufficient to require a hearing. See United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir. 1980), cert, denied, 451 U.S. 938 (1981).

         b. Motions Based on Subsequent Modifications to Prior State Sentences

          In United States v. LaValle, 175 F.3d 1106 (9th Cir. 1999), the Ninth Circuit followed the lead of the First, Fourth, Fifth, and Tenth Circuits, and held that "a defendant who successfully attacks a state conviction may seek review of any federal sentence that was enhanced because of the prior state conviction, " Id. at 1108, In Lavalle, the defendant obtained the vacatur of a Massachusetts conviction which had partially formed the basis for a career offender enhancement to his federal sentence. Under the circumstances, the Court of Appeals ordered the district court to reopen the defendant's federal sentence. Id. at 1109.

         Two years later, the Ninth Circuit further refined its approach to section 2255 petitions based on modified state sentences. See United States v. Hayden, 255 F.3d 768 (9th Cir. 2001). In Hayden, the court reaffirmed that a federal sentence could be reopened where a defendant had successfully attacked a state-court conviction that was used to enhance his federal sentence. Id. at 770. However, the court also highlighted pertinent provisions of the Sentencing Guidelines:

A number of jurisdictions have various procedures pursuant to which previous convictions may be set aside or the defendant may be pardoned for reasons unrelated to innocence or errors of law, e.g., in order to restore civil rights or to remove the stigma associated with a criminal conviction. Sentences resulting from such convictions are to be counted. However, expunged convictions are not counted.

U.S. Sentencing Guidelines Manual § 4A1.2(j), cmt. n, 10 (emphasis added). Accordingly, it is now settled in the Ninth Circuit that an expunged or dismissed state conviction nonetheless qualifies as a prior conviction under the Sentencing Guidelines if the expungement or dismissal "does not alter the legality of the conviction or does not represent that the defendant was actually innocent of the crime." United States v. Norbury, 492 F.3d 1012, 1015 (9th Cir. 2007).

         Just last year, the Ninth Circuit was confronted with a case very similar to Defendant's in United States v. Diaz,838 F.3d 968 (9th Cir. 2016), cert, denied sub nom. Vasquez v. United States,137 S.Ct. 840 (2017). The defendant in Diaz was sentenced to life imprisonment based on two prior California felonies which qualified him for a mandatory sentence enhancement under 21 U.S.C. § 841(b)(1)(A). Id. at 971. "Four years after [the defendant's] sentencing, California adopted Proposition 47, which allowed California courts to reclassify certain felony convictions as misdemeanor convictions. [The defendant] successfully petitioned a California court to reclassify one of his prior California felonies-on which his federal enhancement was based-as a misdemeanor." Id. The defendant argued that "because he ...

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