Opinion
CASE NO. 1:03-CR-05453-(1)-LJO
02-28-2017
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. RITO ZAZUETA, Defendant-Petitioner.
MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S § 2255 MOTION
ECF No. 499
I. INTRODUCTION
On June 15, 2016, Petitioner Rito Zazueta ("Petitioner") filed a pro se motion, pursuant to Title 28, United States Code, Section 2255 ("Section 2255 Motion"), in which he asserts that Johnson v. United States, 135 S. Ct. 2551 (2015), may impact the length of his sentence. ECF No. 499. Following the Court's referral of Petitioner's motion to the Federal Defender's Office ("FDO") pursuant to Eastern District of California General Order 563 (ECF No.500), the FDO notified the Court that it did not intend to supplement Petitioner's motion (ECF No. 503). Upon review of Petitioner's motion and the record in this case, the Court does not believe a response by the Government is necessary. For the reasons that follow, the Court DENIES Petitioner's § 2255 motion.
II. BACKGROUND
On February 3, 2005, a grand jury indicted Petitioner on a four-count Superseding Indictment for the following offenses: (1) violation of 21 U.S.C. §§ 841(a)(1), (b)(1), (c)(2), and 846, Conspiracy to Aid and Abet the Manufacture of Methamphetamine and to Possess Pseudoephedrine, a Listed Chemical, Knowing or Having Reasonable Cause to Believe it Would be Used to Manufacture Methamphetamine; (2) violation of 21 U.S.C. §§ 846 and 841(c)(2) and 18 U.S.C. § 2, Attempted Possession of Pseudoephedrine, a Listed Chemical Knowing or Having Reasonable Cause to Believe it Would be Used to Manufacture Methamphetamine, a Controlled Substance and Aiding and Abetting; (3) violation of 18 U.S.C. § 924(c)(1)(A)(i), Possession of a Firearm in Furtherance of a Drug Trafficking Crime; and (4) violation of 8 U.S.C. § 1326, Deported Alien Found in the United States. ECF No. 142.
Following a two-week jury trial, on May 4, 2005, Petitioner was found guilty of Counts 1, 2, and 3. ECF No. 237. On August 10, 2006, Petitioner pleaded guilty to Count 4. ECF Nos. 381 & 382.
In Petitioner's Presentence Investigation Report ("PSR"), the United States Probation Office ("Probation") determined Petitioner's total offense level to be 38, based on the quantity of actual methamphetamine involved in the case (approximately 183 pounds) for Counts 1, 2, and 3, which were grouped together pursuant to section 3D1.2(d) of the United States Sentencing Guidelines ("USSG" or "Guidelines"). PSR ¶ 33-38. Regarding Count 4, Probation found an adjusted offense level of 16, based on a base offense level of 8, pursuant to USSG § 2L1.2 and an 8-point enhancement pursuant to USSG § 2L1.2(b)(1)(a)(i), because Petitioner had been previously deported after an aggravated felony conviction. Id. ¶¶ 42-44. Accordingly, Probation recommended a 420-month term of imprisonment, based on a total offense level of 38 and a criminal history category of VI. Id. at 20. Specifically, Probation recommended a 360-month term on Count 1 and a 240-month term on Counts 2 and 4, to be served concurrently with one another, and a 60-month term on Count 3, to be served consecutively with the term imposed for Count 1. See id.
On March 5, 2007, the Court adopted in part the PSR's recommendation and sentenced Petitioner to a 300-month term of imprisonment—specifically, a 240-month term for Counts 1, 2 and 4, to run consecutively with a 60-month term for Count 3. ECF Nos. 428 & 429.
On March 14, 2007, Petitioner filed notice that he was appealing his conviction to the Ninth Circuit. ECF Nos. 430 & 432. The Ninth Circuit issued a published opinion affirming Petitioner's conviction (along with the convictions of his co-defendants) on July 24, 2009. ECF No. 450; United States v. Nobari, 574 F.3d 1065 (9th Cir. 2009).
This is Petitioner's first § 2255 motion.
III. LEGAL FRAMEWORK
A. 28 U.S.C. § 2255
Section 2255 provides four grounds upon which a sentencing court may grant relief to a petitioning in-custody defendant:
[1] that the sentence was imposed in violation of the Constitution or laws of the United States; or
[2] that the court was without jurisdiction to impose such sentence; or
[3] that the sentence was in excess of the maximum authorized by law; or
[4] is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). Generally, only a narrow range of claims fall within the scope of § 2255. United States v. Wilcox, 640 F.2d 970, 972 (9th Cir. 1981). The alleged error of law must be "a fundamental defect which inherently results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974).
"When a district court reviews a § 2255 habeas motion, '[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall ... grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.'" United States v. Withers, 638 F.3d 1055, 1062 (9th Cir. 2010) (quoting 28 U.S.C. § 2255). The court need not hold an evidentiary hearing where the prisoner's allegations, when viewed against the record, either do not state a claim for relief or are "so palpably incredible or patently frivolous as to warrant summary dismissal." United States v. McMullen, 98 F.3d 1155, 1159 (9th Cir. 1996) (internal citations omitted). B. Johnson v . United States
Pursuant to the Armed Career Criminal Act ("ACCA"), a defendant must be sentenced to a mandatory minimum of 15 years to life in custody if he has three prior convictions for "a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). The ACCA defines "violent felony" as any crime punishable by imprisonment for a term exceeding one year that:
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or18 U.S.C. § 924(e)(2)(B) (emphasis added). Courts generally refer to the first clause, § 924(e)(2)(B)(i), as the "elements clause"; the first part of the disjunctive statement in (ii) as the "enumerated offenses clause"; and its second part (starting with "or otherwise") as the "residual clause." Johnson v. United States, 135 S. Ct. 2551, 2556-57, 2563 (2015); United States v. Lee, 821 F.3d 1124, 1126 (9th Cir. 2016).
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
In Johnson, the Supreme Court held that "imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process," on the basis that "the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges." 135 S. Ct. at 2557, 2563. "Two features of the residual clause conspire to make it unconstitutionally vague." Id. at 2557. First, "the residual clause leaves grave uncertainty about how to estimate the risk posed by a crime" by "t[ying] the judicial assessment of risk to a judicially imagined 'ordinary case' of a crime, not to real-world facts or statutory elements." Id. Second, "[b]y combining indeterminacy about how to measure the risk posed by a crime with indeterminacy about how much risk it takes for the crime to qualify as a violent felony, the residual clause produces more unpredictability and arbitrariness than the Due Process Clause tolerates." Id. at 2558. C. Sentencing Pursuant to 18 U.S.C. § 924(c)(1)(A)
18 U.S.C. § 924(c)(1)(A) provides, inter alia, that any person who in relation to any "drug trafficking crime," uses or carries a firearm, shall in addition to the punishment provided for such "drug trafficking crime," be sentenced to a term of imprisonment of not less than five years, to run consecutively with the punishment for the underlying "crime of violence." If a firearm is brandished in the course of committing the "crime of violence," the consecutive term of imprisonment shall be not less than seven years (84 months). 18 U.S.C. § 924(c)(1)(A)(ii). If a firearm is discharged, the consecutive term of imprisonment shall be not less than ten years. Id. § 924(c)(1)(C)(A)(iii).
For purposes of 18 U.S.C. § 924(c)(1)(A), a "drug trafficking crime" is defined as an offense that is "any felony punishable under the Controlled Substances Act (21 U.S.C. § 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. § 951 et seq.), or Chapter 705 of title 46." 18 U.S.C. § 924(c)(2).
IV. DISCUSSION
Petitioner argues that in light of Johnson, his conviction for Count 1, the violation of 21 U.S.C. §§ 841 and 846, Conspiracy to Aid and Abet the Manufacture of Methamphetamine, can no longer qualify as a predicate offense for a § 924(c)(1)(A) conviction because the 21 U.SC. §§ 841 and 846 offense can no longer be deemed a "crime of violence." ECF No. 99 at 9-10. Petitioner additionally requests an evidentiary hearing on the issue. Id. at 11.
In this case, it is clear that Petitioner's § 924(c)(1)(A) conviction was appropriate. Petitioner's contention that his 21 U.S.C. §§ 841, 846 conviction is no longer a "crime of violence" is completely inapposite because this offense is nevertheless a "drug trafficking offense" that can sustain a § 924(c)(1)(A) conviction. See Abbott v. United States, 562 U.S. 8, 28 (2010) (affirming Petitioner Abbott's § 924(c)(1)(A) conviction that was premised on two counts of violating 21 U.S.C. §§ 841 & 846). As mentioned above, § 924(c)(1)(A) provides for a mandatory consecutive term of imprisonment for defendants who use or carry a firearm in relation to any drug trafficking crime. See id. at 12 ("As one of several measures to punish gun possession by persons engaged in crime, Congress made it a discrete offense [through § 924(c)(1)(A)] to use, carry, or possess a deadly weapon in connection with 'any crime of violence or drug trafficking crime.'") (emphasis added). Because a jury found Petitioner guilty beyond a reasonable doubt of possessing a firearm in furtherance of a drug trafficking offense, see ECF No. 237, a mandatory consecutive five-year term applies. 18 U.S.C. § 924(c)(1)(A)(i); see also Abbott, 562 U.S. at 13 (" ... the mandatory minimum sentence for a § 924(c) offense is five years."). Johnson, which only applies to "crime of violence" determinations, is irrelevant here. See 18 U.S.C. § 924(3)(2)(B); Johnson, 135 S. Ct. at 2556-57.
Therefore, Petitioner's sentence was properly imposed, and the Court DENIES Petitioner's § 2255 motion. Furthermore, because Petitioner has failed to allege facts that if true, would entitle him to relief, Petitioner is not entitled to an evidentiary hearing on this issue. McMullen, 98 F.3d at 1159.
CONCLUSION AND ORDERS
For the reasons above, the Court DENIES Petitioner's § 2255 motion (ECF No. 499).
Furthermore, because Petitioner has failed to make a showing that he was denied a constitutional right, the Court DECLINES to issue a certificate of appealability pursuant to 28 U.S.C. § 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The Clerk of Court is DIRECTED to CLOSE THE CASE. IT IS SO ORDERED.
Dated: February 28 , 2017
/s/ Lawrence J. O'Neill
UNITED STATES CHIEF DISTRICT JUDGE