United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
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.
§ 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.
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.
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.
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.
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.
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).
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
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 ...