Opinion
Case No. 2:17-CV-8498 DDP (RAO) CR 14-00613 DDP - 1
04-18-2018
ALEJANDRO MARTINEZ GONZALEZ, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER DENYING PETITIONER'S SECTION 2255 MOTION
[Dkt. 28]
Presently before the court is Petitioner Alejandro Martinez Gonzalez's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Having considered the parties' submissions, the court adopts the following Order.
I. BACKGROUND
In 2015, pro se petitioner Martinez Gonzalez ("Petitioner") pled guilty to violating 8 U.S.C. § 1326(a),(b)(2). (Dkts. 1, 20.) These code sections penalize the "[r]eentry of removed aliens," see 8 U.S.C. § 1326(a), and specify that a non-citizen "whose removal was subsequent to a conviction for commission of an aggravated felony" shall be imprisoned for a maximum term of twenty years, id. § (b)(2).
"Dkt." refers to the docket in the underlying criminal case, No. CR 14-613-DDP, unless otherwise indicated.
In the plea agreement, Petitioner "admit[ted] that [he] is, in fact, guilty of a violation of 8 U.S.C. § 1326(a) as described in the information, and that he is subject to the heightened statutory maximum penalties under 8 U.S.C. § 1326(b)(2)." (Dkt. 13, at 5.) Specifically, the plea agreement sets forth the following factual background:
On or about August 23, 2007, defendant was convicted of an aggravated felony, namely, Possession of Cocaine for Sale, in violation of California Health and Safety Code Section 11351, a drug trafficking offense for which the sentence imposed exceeded 13 months, in the Superior Court of the State of California . . . .
Defendant was lawfully deported or removed from the United States . . . on or about October 6, 2008. In or about September 2010, defendant knowingly and voluntarily re-entered and thereafter remained in the United States. (Id. at 6.)
On the basis of these facts, Petitioner stipulated to a sixteen-level enhancement under the U.S. Sentencing Guidelines ("the Guidelines"). (Id. at 7.) The Guidelines recommend such an enhancement if "the defendant was previously deported, or unlawfully remained in the United States" after a felony conviction for "a drug trafficking offense for which the sentence imposed exceeded 13 months." U.S.S.G. § 2L1.2(b)(1)(A)(i).
As stipulated in the plea agreement, the government recommended that the court "impose a low-end sentence of 37 months imprisonment, followed by a three-year period of supervised release." (Dkt. 22 at 3.) On March 23, 2015, the court sentenced Petitioner to thirty-seven months in prison and three years of supervised release. (Dkt. 26.)
Defendant now moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
II. LEGAL STANDARD
Section 2255 allows federal prisoners to file motions to vacate, set aside, or correct a sentence on the ground that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a).
III. DISCUSSION
A. Plaintiff's Challenge to His Sentence Enhancement
Petitioner contends that, in light of intervening case law, his conviction under California Health and Safety Code § 11351 no longer serves as the basis for a sixteen-level enhancement under the Guidelines.
Although the Guidelines serve only as recommendations, the Ninth Circuit has acknowledged that, "by statute, a sentencing judge's discretion is always framed by the Guidelines." United States v. Davis, 825 F.3d 1014, 1026 (9th Cir. 2016). Even when the defendant has entered into a plea agreement "the judge's decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines." Id. at 1017 (quoting Freeman v. United States, 564 U.S. 522, 534 (2011)). Here, the plea agreement also makes clear that the government's recommended sentence is "rooted in the Guidelines." Id. at 1027.
For the crime of unlawful reentry, the Guidelines suggest a sentence enhancement of up to sixteen levels if the defendant was previously removed after a felony conviction that is "a drug trafficking offense for which the sentence imposed exceeded 13 months." U.S.S.G. § 2L1.2(b)(1)(A)(i). Here, the question before the court is whether Petitioner's prior conviction under § 11351 counts as a "drug trafficking offense" under the Guidelines.
To challenge the application of the sixteen-level enhancement, Petitioner cites Mathis v. United States, 136 S.Ct. 2243 (2016). In Mathis, the Supreme Court addressed the question of when a state conviction is deemed a predicate offense under federal law. Specifically, Mathis charted a three-step approach for determining whether a state conviction counts as the basis for a federal sentencing enhancement.
First, the court asks whether the state offense is a categorical match with the corresponding federal offense. See United States v. Murillo-Alvarado, 876 F.3d 1022, 1026 (9th Cir. 2017). At this stage, the court is limited to an examination of the statutory definitions. Id. If the federal offense sweeps more broadly and proscribes more conduct than state law, then the laws are not a categorical match. Id.
Second, if no categorical match exists, the court asks whether the state law is divisible. Id. Divisibility exists if the state law sets forth various "elements in the alternative, and thereby define[s] multiple crimes." Mathis, 136 S.Ct. at 2249. Elements are the "constituent parts of a crime's legal definition." Id. at 2248 (quotations omitted). A jury must find the specific element upon which it sustains a conviction beyond a reasonable doubt, and a defendant necessarily admits to this element when pleading guilty. Id. By contrast, a statute is indivisible if it lists "alternative means by which a defendant might commit the same crime." Murillo-Alvarado, 876 F.3d at 1026. This "elements" versus "means" analysis is dispositive of the divisibility question.
If state law is not clear on the issue of divisibility, the court may peek at the record of conviction for the limited purposes of determining whether "a statutory list is of elements or means." Mathis, 136 S.Ct. at 2257 n.7.
Only if the law is divisible does the court finally decide whether the conviction is a match to the federal drug trafficking offense under the "modified categorical" approach. Murillo-Alvarado, 876 F.3d at 1026. The "modified categorical" approach refers to a fact-bound process by which the court examines judicially noticeable documents in the record of conviction to decide whether the state conviction falls within the ambit of the federal offense: in other words, to determine "what crime, with what elements, a defendant was convicted of." Mathis, 136 S.Ct. at 2249.
The Ninth Circuit has already held that § 11351 is not a categorical match with the "drug trafficking offense[s]" referenced in the Guidelines. Murillo-Alvarado, 876 F.3d at 1026. This is because the state law criminalizes the possession or purchase of certain substances that are not controlled under federal law. Id. Furthermore, the Circuit has concluded that § 11351 is divisible as to its controlled substance requirement. Id. at 1027. Therefore, a court may examine documents in the record of conviction to determine whether Petitioner was in fact convicted of a predicate crime involving a controlled substance that also qualifies as a controlled substance under federal law.
As to the nature of the controlled substance, the court finds that Petitioner's record of conviction shows that he necessarily admitted to possessing or purchasing cocaine when he pled guilty to violating § 11351. The abstract of judgment in this case lists "Possess cocain[e] for sale" as the § 11351 violation to which Petitioner pled guilty. (Ex. at 3.) Further, Petitioner's plea form states that he will plead no contest to Count V of the complaint, which is described as a violation of § 11351 for "possession of cocaine." (Id. at 7-8.) This is corroborated by the minute order, which affirms that Petitioner pled no contest to Count V. (Id. at 5.) Considered together, these judicially noticeable documents establish that Petitioner's conviction under § 11351 was based on the specific controlled substance of cocaine. It is undisputed that cocaine is a controlled substance under both § 11351 and federal law. Therefore, Petitioner's § 11351 conviction for cocaine may qualify as a federal "drug trafficking offense" under the Guidelines.
The judicially noticeable documents of Petitioner's § 11351 conviction are attached to the present order. These filed documents include the felony complaint, abstract of judgment, minute order, and guilty plea form. See Coronado v. Holder, 759 F.3d 977, 986 (9th Cir. 2014) ("Where the minute order or other equally reliable document specifies that a defendant pleaded guilty to a particular count of a criminal complaint, the court may consider the facts alleged in the complaint.").
The Circuit's decision in Murillo-Alvarado left unaddressed, however, whether § 11351 is also indivisible as to its actus reus requirement. See 876 F.3d at 1026 n.2. The actus reus requirement refers to § 11351's prohibition, in the disjunctive, of the "possess[ion] for sale or purchases for purposes of sale" of certain controlled substances. Cal. Health & Safety Code § 11351.
In United States v. Morales-Perez, 467 F.3d 1219 (9th Cir. 2006), the Ninth Circuit addressed whether a similar statute, California Health and Safety Code § 11351.5, is a categorical match for the federal "drug trafficking offenses" referenced in the Guidelines. Like § 11351, § 11351.5 prohibits the "possession for sale or purchases for purposes of sale" of a controlled substance, specifically cocaine base. In Morales-Perez, the panel concluded that the "definition of drug trafficking offense contained within the Sentencing Guidelines encompasses both possession and purchase with intent to distribute." 467 F.3d at 1220 (emphasis added). In other words, the laws are a categorical match.
The Morales-Perez panel rested its conclusion on the fact that the 2004 version of the Guidelines contains a comment, or "application note," specifying that the definition of "drug trafficking offenses" also includes "attempting[] to commit such offenses." Id. at 1221. Applying this expanded definition, the panel held that "the federal crime of attempted possession with intent to distribute encompasses the state-defined crime of purchasing cocaine base for purposes of sale." Id. at 1222 (emphasis added). For this reason, the panel ruled that § 11351.5 was a categorical match with the drug trafficking offenses defined in the Guidelines.
Upon review of the 2013 Guidelines in effect at the time of Petitioner's sentencing, the court concludes that Morales-Perez compels the same result here. Although absent in more recent versions of the Guidelines, the 2013 Guidelines also contain a comment that broadens the definition of "drug trafficking offense" to include attempted offenses. See U.S.S.G. § 2L1.2 cmt. 5 (Nov. 1, 2013). Therefore, the court finds that Petitioner's conviction under § 11351 for the possession or purchase of cocaine for sale counts as a federal "drug trafficking offense." As such, Petitioner's conviction properly served as the basis for his sixteen-level enhancement under the Guidelines.
A. Plaintiff's Challenge to Aggravated Felony Designation
Finally, Petitioner appears to assert that his conviction under § 11351 no longer qualifies as an aggravated felony. (Dkt. 28 at 2.) Under 8 U.S.C. § 1326(b)(2), the code provision to which Petitioner pled guilty, an individual is subject to enhanced penalties if his "removal was subsequent to a conviction for commission of an aggravated felony." Whereas the crime of reentry typically carries a maximum sentence of two years, see 8 U.S.C. § 1326(a), this code provision increases the statutory maximum to twenty years if Petitioner was removed after an aggravated felony conviction, see id. § 1326(b)(2). Because the court sentenced Petitioner to thirty-seven months in prison, it now examines whether his sentence exceeded the statutory maximum.
The court notes that the plea agreement in this case contains a waiver of Descamps-based challenges to his prior conviction. (Dkt. 13 at 10-11.) Specifically, Petitioner agreed to waive his right to raise "any challenges to the prior aggravated felony conviction stipulated in paragraph 10." (Id.) However, as the government has not specifically raised the issue of waiver, and because Petitioner may still challenge his sentence on the grounds that it "exceeds the permissible statutory penalty for the crime or violates the Constitution," United States v. Bibler, 495 F.3d 621, 624 (9th 2007), the court proceeds to examine this claim.
Under 8 U.S.C. § 1101(a)(43), an aggravated felony is defined to include "a drug trafficking crime," and "an attempt" to commit a drug trafficking crime. See 8 U.S.C. §§ 1101(a)(43)(B), 1101(a)(43)(U). Because an aggravated felony may arise from an attempted drug trafficking crime, this claim rises or falls with Petitioner's earlier claim under the Guidelines. For the same reasons as articulated above in response to Petitioner's sentencing enhancement challenge, the court concludes that Petitioner's conviction under § 11351 constitutes a "drug trafficking crime" or "an attempt" to commit a drug trafficking crime under 8 U.S.C. § 1101(a)(43). See also Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir.2008) ("[P]ossession of a controlled substance with the intent to sell contains a trafficking element and is an aggravated felony."). Therefore, the court appropriately deemed Petitioner's § 11351 conviction to be an aggravated felony for sentencing purposes, and the court's thirty-seven-month sentence did not exceed the statutory maximum set forth in 8 U.S.C. § 1326.
Petitioner cites in passing to Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), and Johnson v. United States, 135 S.Ct. 2551 (2015). Dimaya held that the definition of a "crime of violence" under federal law, 18 U.S.C. § 16(b), was unconstitutionally vague, see 803 F.3d at 1120, while Johnson held that the residual clause of the Armed Career Criminal Act was unconstitutionally vague, see 135 S.Ct. at 2557. As Petitioner was not sentenced pursuant to any of those code provisions, both cases are inapposite here. --------
IV. CONCLUSION
For the reasons stated above, Martinez-Gonzalez's § 2255 motion is DENIED.
IT IS SO ORDERED.
Dated: April 18, 2018
/s/_________
DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE
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