Opinion
Case No. 1:09-cr-021 CW
10-19-2016
UNITED STATES OF AMERICA, Plaintiff, v. JULIO PATTON CESAR CARDENA, Defendant.
MEMORANDUM DECISION AND ORDER
Defendant Julio Patton Cesar Cardena has moved pro se for appointment of counsel, seeking assistance in preparing a petition under Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015). Johnson held the residual clause of the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B), was unconstitutional. Johnson, 135 S. Ct. at 2563. As a result, it permitted challenges under 28 U.S.C § 2555 to sentences imposed under that clause. See Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257, 1268 (2016).
In this case, the court has reviewed the presentence report and the judgment. Mr. Cardena was sentenced under U.S.S.G. §§ 2D1.1 and 4B1.1, which set the base offense level at 37 based on the quantity of drugs involved and two prior convictions for a controlled substance offense. Mr. Cardena was given a three-level reduction for acceptance of responsibility. Based on his criminal history, Mr. Cardena's guideline sentence was 262 to 327 months. At sentencing the court varied from the Guideline range and imposed sentence at 151 months.
Notably, Mr. Cardena's sentencing Guideline was not calculated under the residual clause of the Armed Career Criminal Act. Johnson therefore has no application to him. In addition, any § 2255 petition filed at this point would likely be untimely. For these reasons, there appears no basis to appoint counsel to allow Mr. Cardena to pursue such a petition. The motion is DENIED. (Dkt. No. 91).
SO ORDERED this 19th day of October, 2016.
BY THE COURT:
/s/_________
Clark Waddoups
United States District Judge