1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PABLO CALDERON-JIMENEZ, Criminal Case No.: 13cr2467-JAH Civil Case No.: 16cv1798-JAH 12 Petitioner, 13 v. ORDER DENYING PETITIONER’S

MOTION TO VACATE, SET ASIDE,

14 UNITED STATES OF AMERICA,

OR CORRECT SENTENCE

15 Respondent. PURSUANT TO 28 U.S.C. § 2255 (Doc. No. 97). 16 17 18 INTRODUCTION 19 This matter comes before the Court on Petitioner Pablo Calderon-Jimenez’s 20 (“Petitioner”) pro se motion to vacate, set aside, or correct his sentence pursuant to 28 21 U.S.C. § 2255. Doc. No. 97. Petitioner’s motion has been fully briefed. See Doc. No. 99. 22 Under Rule 4 of the Rules Governing § 2255 Proceedings, this Court may dismiss a § 2255 23 motion if it “plainly appears” from the motion, attached exhibits, and the record of prior 24 proceedings, that a petitioner is not entitled to relief. See Rule 4 of the Rules Governing § 25 2255 Proceedings; see also United States v. Blaylock, 20 F.3d 1458, 1465 (9th Cir. 1994). 26 Having thoroughly considered the parties’ briefing, the relevant record, and, in accordance 27 with Rule 4, the Court finds oral argument unnecessary, and hereby DENIES Petitioner’s 28 motion. 1 BACKGROUND 2 On July 2, 2013, Petitioner was charged in an indictment for being a removed alien 3 found in the United States in violation of 28 U.S.C. § 1326. See Doc. No. 1. On May 5, 4 2014, a jury returned a verdict finding Petitioner guilty. See Doc. No. 48. At sentencing, 5 the Court determined Petitioner’s adjusted offense level was 22, as a result of a sixteen- 6 level enhancement “due to the crime of violence committed prior to a deportation,” and a 7 minus-two adjustment for acceptance of responsibility. See Doc. No. 82 at 24. Petitioner 8 had a criminal history score of 13 and criminal history category of six, and a Guideline 9 range of 84 to 105 months in custody. Id. Petitioner was sentenced to 70-months in Bureau 10 of Prisons custody, followed by three years of supervised release. See Doc. No. 66. 11 Judgment was entered on November 26, 2014. See Doc. Nos. 66, 67. After imposition of 12 the sentence, Petitioner appealed his conviction to the Ninth Circuit. See Doc. No. 68. The 13 Ninth Circuit affirmed his conviction in an unpublished memorandum decision on 14 February 2, 2016. See Doc. No. 93. 15 On July 11, 2016, Petitioner, proceeding pro se, filed the instant § 2255 motion 16 arguing, as his basis for relief, United States v. Johnson. 135 S. Ct. 2551 (2015); Doc. No. 17 97. On December 30, 2016, Respondent filed a response in opposition. See Doc. No. 99. 18 Petitioner did not file a reply brief. 19 DISCUSSION 20 As a threshold matter, “a defendant seeking relief under 28 U.S.C. § 2255 . . . must 21 be in custody, [and] . . . claim the right to be released from custody.” United States v. 22 Kramer, 195 F.3d 1129 (9th Cir. 1999). Here, the Bureau of Prisons (“BOP”) inmate 23 locator indicates that Petitioner was released from custody on June 20, 2018.1 Despite 24 Petitioner being out of BOP custody, he is still under supervised release and therefore in 25 custody within the meaning of § 2255. Mujahid v. Daniels, 413 F. 3d 991, 994 (9th Cir. 26

27 1 See Inmate Locator & Record Availability, Federal Bureau of Prisons, https://www.bop.gov/inmateloc/ 28 1 2005) (quoting Matus–Leva v. United States, 287 F.3d 758, 761 (9th Cir. 2002) (“[A] 2 habeas petitioner remains in the custody of the United States while on supervised 3 release”)). 4 I. Motion to Vacate, Set Aside, Or Correct Sentence Pursuant To 28 U.S.C. § 2255 5 A. Legal Standard 6 The provisions of the Antiterrorism and Effective Death Penalty Act of 1996 7 (“AEDPA”) apply to petitions for writ of habeas corpus filed in federal court after April 8 24, 1996. United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Therefore, the 9 instant petition is subject to AEDPA because it was filed on July 11, 2016. A § 2255 motion 10 may be brought to vacate, set aside, or correct a federal sentence on the following grounds: 11 (1) that the sentence “was imposed in violation of the Constitution or laws of the United 12 States,” (2) that “the court was without jurisdiction to impose such [a] sentence,” (3) that 13 “the sentence was in excess of the maximum authorized by law,” or (4) that “the sentence 14 is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). 15 B. Analysis 16 In Johnson, the Court held that the residual clause of the Armed Career Criminal Act 17 (“A.C.C.A.”) was void for vagueness because it violates Due Process. Johnson, supra, 135 18 S. Ct. at 2551. The Court explicitly stated its decision “does not call into question 19 application of the [ACCA] to . . . the remainder of the Act’s definition of a violent felony,” 20 including a felony offense that “has as an element the use, attempted use, or threatened use 21 of physical force against the person of another,” 18 U.S.C. § 924(e)(2)(B)(i), and a felony 22 offense that “is burglary, arson, or extortion, [or] involves use of explosives,” 18 U.S.C. § 23 924(e)(2)(B)(ii). 135 S.Ct. at 2563. Moreover, the Court held that its decision in Johnson 24 announced a new substantive rule that applied retroactively on collateral review. See Welch 25 v. United States, 136 S. Ct. 1257 (2016). Later, the Court determined that a similar 26 provision in the Guidelines was not unconstitutional because the Guidelines were merely 27 advisory. Beckles v. United States, 137 S. Ct. 886 (2017) (“Because they merely guide the 28 1 district court’s discretion, the Guidelines are not amenable to a void for vagueness 2 challenge.”) 3 Petitioner challenges “his +16 points enhancement increased [sic] for a past state 4 statute conviction that resulted in his deportation. The enhancement was based on a 5 California Penal Code 422 when he was being sentence [sic] for Illegal Re-Entry 8 U.S.C. 6 1326(a)(b)(2)[.]” See Doc. No. 97 at 1. In response, Respondent argues that Petitioner is 7 not entitled to habeas relief because Petitioner “was not sentenced using any guidelines 8 provision that contains language similar to the language found infirm in Johnson, 9 [therefore] his petition must be denied.” See Doc. No. 99 at 4 (citations omitted). 10 The Court finds the holding in Johnson does not provide a basis for relief for 11 Petitioner. The United States Sentencing Guidelines (“USSG”) provides for a sixteen-level 12 enhancement if “the defendant previously was deported ... after ... a conviction for a felony 13 that is ... a crime of violence.” USSG § 2L1.2(b)(1)(A)(ii). The commentary to § 2L1.2 14 provides that: 15 “Crime of violence" means any of the following offenses under federal, state, or local law: murder, manslaughter, kidnapping, aggravated assault, forcible 16 sex offenses (including where consent to the conduct is not given or is not 17 legally valid, such as where consent to the conduct is involuntary, incompetent, or coerced), statutory rape, sexual abuse of a minor, robbery, 18 arson, extortion, extortionate extension of credit, burglary of a dwelling, or 19 any other offense under federal, state, or local law that has as an element the use, attempted use, or threatened use of physical force against the person of 20 another. 21 USSG § 2L1.2, Application Note 1(B)(iii). 22 As stated above, this Court prescribed Petitioner a sixteen-level sentence 23 enhancement for a violation of California Penal Code § 422. The Ninth Circuit has 24 established that California Penal Code § 422 is “categorically a conviction for a crime of 25 violence,” as it “requires a threatened use of violent physical force against another person.” 26 United States v. Villavicencio-Burruel, 608 F.3d 556, 562 (9th Cir. 2010). This was 27 reaffirmed in Petitioner’s direct appeal. United States v. Pablo Calderon-Jimenez, 637 F. 28 1 || App’x. 295 (9th Cir. 2016) (unpublished) (“Calderon-Jimenez’s argument that a criminal 2 ||threats conviction under California Penal Code § 422 was not a crime of violence under 3 ||§2L1.2 of the Sentencing Guidelines is squarely foreclosed by [Villavicenio-Burruel]’). 4 || Therefore, because Petitioner’s sentence enhancement was not prescribed by the residual 5 ||clause and there is no language in USSG § 2L1.2 or the commentary to USSG § 2L1.2 6 ||similar to the residual clause, such that a reasonabe argument can be made that USSG § 7 2L1.2 should be invalidated by the ruling in Johnson, Petitioner’s habeas fails. 8 Il. Certificate of Appealability 9 To appeal a district court’s denial of a § 2255 petition, a petitioner must obtain a 10 certificate of appealability. 28 U.S.C. § 2253(c)(1)(A). A district court may issue a 11 |\certificate of appealability “only if the applicant has made a substantial showing of the 12 || denial of a constitutional right.” Id. § 2253(c)(2). To satisfy this standard, the petitioner 13 show that “reasonable jurists would find the district court's assessment of the 14 || constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 15 For the reasons stated above, no reasonable jurist could conclude that Petitioner is 16 |/entitled to relief based on the arguments set forth in his § 2255 motion. Accordingly, the 17 || Court declines to grant Petitioner a certificate of appealability. 18 CONCLUSION AND ORDER 19 Based on the foregoing, IT IS HEREBY ORDERED Petitioner’s motion to vacate, 20 aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED. Doc. No. 97. 21 IT IS SO ORDERED. 22 DATED: March 6, 2020 23 VU 24 fe 25 NITED STATES DISTRICT JUDGE 26 27 28