United States District Court, D. Nevada
C. JONES United States District Judge
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
FACTS AND PROCEDURAL HISTORY
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.
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.
II. LEGAL STANDARDS
Section 2255 Motions Generally
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).
Motions Based on Subsequent Modifications to Prior State
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.
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).
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