Opinion
Cause No. CR 07-22-BLG-SPW
07-26-2017
UNITED STATES OF AMERICA, Plaintiff/Respondent, v. JOSE ANGEL TORRES-GUARDADO, Defendant/Movant.
ORDER
On July 24, 2017, Defendant Torres-Guardado, acting pro se, moved the Court to "correct" the presentence report to reflect that two prior convictions are not "crimes of violence" in the wake of Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551 (2015). Torres refers to the Ninth Circuit's ruling permitting him to file a second or successive motion under 28 U.S.C. § 2255. See Mot. to Correct (Doc. 101) at 1; Order (Doc. 95).
For two reasons, the motion to correct is denied. First, after the Ninth Circuit made its ruling, the United States Supreme Court held that the advisory Sentencing Guidelines are not subject to due process challenges. As a result, Johnson, which concerned a due process challenge to a federal statute, does not apply to the Sentencing Guidelines. See Beckles v. United States, ___ U.S. ___, 137 S. Ct. 886, 890 (2017).
Second, the correct legal characterization of Torres's prior offenses is not essential to the Bureau of Prisons' placement decisions. The Bureau may consider the conduct reportedly underlying any of Torres's prior offenses in determining his appropriate placement within the prison or in pre-release programs. See 18 U.S.C. § 3621(b).
Correction of the report is not warranted.
Accordingly, IT IS HEREBY ORDERED that Torres-Guardado's motion to correct the presentence report (Doc. 101) is DENIED.
DATED this 26th day of July, 2017.
/s/_________
Susan P. Watters
United States District Court