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United States v. Rojas-Martinez

United States District Court, D. Nebraska

October 13, 2016



          John M. Gerrard United States District Judge.

         This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 36) filed by the defendant, Alfredo Rojas-Martinez. The motion was timely filed less than 1 year after the defendant's conviction became final. See § 2255(f). The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.


         The defendant was convicted, pursuant to a guilty plea, of one count of reentry of a removed alien after felony conviction, in violation of 8 U.S.C. § 1326. The Court found that the defendant's criminal history category was VI, filing 32 at 1, based in part on a 2006 California conviction for possession of methamphetamine, filing 29 at 10-11. The defendant had been sentenced to 3 years' imprisonment on that charge, so the defendant was assessed three criminal history points pursuant to U.S.S.G. § 4A1.1(a). Filing 29 at 10-11.

         The Court determined, based on an offense level of 13 and a criminal history category VI, that the Guidelines imprisonment range was 33 to 41 months. Filing 32 at 1. On March 20, 2015, the Court departed from the Guidelines range pursuant to a plea agreement and imposed a sentence of 32 months' imprisonment. Filing 31 at 2; filing 32 at 1.

         On November 4, 2014, California voters had approved Proposition 47, a ballot initiative that reduced certain drug possession and theft felonies to misdemeanors. 2014 Cal. Legis. Serv. Prop. 47 (West). Proposition 47 also created a process for people serving sentences for those offenses to petition for resentencing, and for people who had completed their sentences to apply for reclassification of their crime as a misdemeanor. See Cal. Penal Code § 1170.18.

         The defendant availed himself of that process, and on August 20, 2015, a California state court granted the defendant's application to designate his felony conviction as a misdemeanor conviction under California law. Filing 36 at 14. The defendant now moves pursuant to § 2255 to have the Court "recalculate his sentence to reflect the correct calculation of his criminal history[.]" Filing 36 at 12.


         The defendant's argument is premised on the belief that because California reclassified his prior conviction from a felony to a misdemeanor, it should no longer be a countable "felony offense" for purposes of the Sentencing Guidelines. That is incorrect. Under the Guidelines, "a 'felony offense' means any federal, state, or local offense punishable by death or a term of imprisonment exceeding one year, regardless of the actual sentence imposed." U.S.S.G. § 4A1.2(o). In other words, whether an offense is a "felony" or a misdemeanor for Guidelines purposes is determined under the Guidelines definition, not by state law. See United States v. Davis, No. 15-2729, 2016 WL 4205930, at *1 (8th Cir. Aug. 10, 2016).

         So, as the Ninth Circuit has explained, "even if California decided to give Proposition 47 retroactive effect for purposes of its own state law, that would not retroactively make Vasquez's felony conviction a misdemeanor for purposes of federal law." United States v. Diaz, No. 10-50029, 2016 WL 5121765, at *4 (9th Cir. Sept. 21, 2016).

Ignoring later state actions for purposes of federal sentences . . . aligns with the Supreme Court's repeated admonishments that federal laws should be construed to achieve national uniformity. . . . If a conviction were to be determined by application of the different statutes of each state, then the application of federal criminal sanctions would depend solely upon where the defendant's previous conviction had occurred. We doubt[] that Congress would have intended a federal criminal law to be applied in such a patchwork fashion.

Id. at *4 (citations and quotations omitted) (citing United States v. McGlory,968 F.2d 309, 350 (3d Cir. 1992) ("[W]e note the confusion in sentencing likely to result if the sentencing court had to analyze the status of every prior state conviction in terms of the status of state law. . . . This would entail applying changes ...

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