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Ramirez v. United States

United States District Court, E.D. Tennessee, Knoxville

March 29, 2017

TEOFILO RAMIREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Thomas W. Phillips SENIOR UNITED STATES DISTRICT JUDGE

         Before the Court is Petitioner's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Doc. 20]. He bases the request for relief on Johnson v. United States, 135 S.Ct. 2551 (2015), in which the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), was unconstitutionally vague [Id.]. The United States responded in opposition on February 3, 2017 [Doc. 22]; Petitioner replied in turn on February 17, 2017 [Doc. 23]. For the reasons that follow, the petition will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         In 2012, Petitioner pled guilty to unlawfully reentering the United States after having been deported following a conviction for an aggravated felony, in violation of 18 U.S.C. § 1326(a)(1), (b)(2) [Presentence Investigation Report (PSR) ¶¶ 1-3]. The United States Probation Office assigned Petitioner a base offense level of eight under Section 2L1.2(a) of the United States Sentencing Guidelines, but applied a sixteen-level enhancement under Section 2L1.2(b)(1)(A) based on Petitioner's prior California conviction for carjacking and robbery [Id. ¶¶ 14, 15, 28].[1]A three-level reduction for acceptance of responsibility yielded a total offense level of twenty-one, which combined with Petitioner's criminal history category of VI to produce an advisory Guideline range of 77 to 96 months' imprisonment [Id. ¶¶ 21, 22, 53]. On October 17, 2012, this Court sentenced Petitioner to 77 months' imprisonment [Doc. 18]. He did not appeal.

         Over three-and-a-half years later-on June 22, 2016, Petitioner filed the instant § 2255 motion challenging his sentence based on the Johnson decision [Doc. 20 (arguing that his California conviction for carjacking and robbery no longer qualifies as a “crime of violence”)].

         II. STANDARD OF REVIEW

         The relief authorized by 28 U.S.C. § 2255 “does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, a petitioner must demonstrate “(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law . . . so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). He “must clear a significantly higher hurdle than would exist on direct appeal” and establish a “fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process.” Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998).

         III. ANALYSIS

         To the extent that Petitioner's argues he no longer possesses predicate offenses sufficient for categorization as an armed career criminal under § 924(e), enhancement as a career-offender under Section 4B1.1 of the United States Sentencing Guidelines, or application of an enhanced base offense level under Section 2K2.1 of the same, that argument fail because the record demonstrates that he was never subjected to those provisions [PSR ¶¶ 14, 15, 21, 22, 28, 53].[2]

         To the extent that Petitioner challenges application of the sixteen-level enhancement under Section 2L1.2(b)(1)(A), that argument fails because the definition for “crime of violence” under Section 2L1.2 does not contain a residual clause like the one invalidated by the Johnson decision. Thus, the Johnson decision is inapposite to the instant case and cannot serve as a basis for relief.

         IV. CONCLUSION

         For the reasons discussed, the § 2255 motion [Doc. 20] will be DENIED and DISMISSED WITH PREJUDICE. The Court will CERTIFY any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, this Court will DENY Petitioner leave to proceed in forma pauperis on appeal. See Rule 24 of the Federal Rules of Appellate Procedure. Petitioner having failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability SHALL NOT ISSUE. 28 U.S.C. § 2253; Rule 22(b) of the Federal Rules of Appellate Procedure.

         AN APPROPRIATE ...


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