United States District Court, D. Hawaii
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
C. Kay Sr. United States District Judge
Hector Lopez filed a Motion Under 28 U.S.C.§ 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (“Motion”). For the reasons set forth
below, the Court hereby DENIES Petitioner's Motion, Doc.
October 8, 1997, Petitioner was charged by a federal grand
jury with conspiracy to distribute more than 1 kilogram of
heroin, relieving and assisting co-defendant Francisco
Davalos in the use and possession of a firearm during and in
relation to a drug trafficking crime which resulted in the
murder of Arturo Renteria-Hernandez, and carrying and using a
firearm during and in relation to a drug trafficking crime
and causing the first degree murder of Renteria-Hernandez.
Doc. No. 1. On July 29, 1998, the indictment was superseded
to charge Petitioner with: Count 1: Conspiracy to Distribute
1 Kilogram or More of Heroin; Count 2: Conspiracy to
Distribute More Than 100 Grams of Heroin; Count 4: Rendering
Aid and Comfort to Francisco Davalos Knowing that Davalos Had
Committed the Murder of Arturo Renteria-Hernandez; and Count
5: Carrying and Using a Firearm During and in Relation to the
Count 2 Drug Trafficking Conspiracy, and in the Course of
that Violation Committing the First Degree Murder of Armando
Renteria-Hernandez. Doc. No. 207.
September 25, 1998, following a 9-day jury trial, Petitioner
was convicted of Counts 1, 2, 4, and 5. Doc. No. 247. On
April 19, 1999, Petitioner was sentenced to a term of
imprisonment of 151 months for Counts 1, 2, and 4, to be
served concurrently, and life imprisonment for Count 5, to
run consecutive to the 151 month sentence for the other
counts. Doc. No. 271.
filed a Motion for Reduction of Sentence on July 2, 2015.
Doc. Nos. 314-315. The Court denied the Motion on October 23,
2015, finding Petitioner ineligible for a sentence reduction
pursuant to Amendment 782 of the Sentencing Guidelines. Doc.
22, 2016, Petitioner, proceeding pro se, mailed to this Court
the instant Motion. On July 8, 2016, the Court issued a
Minute Order appointing the Federal Public Defender as
counsel to represent Petitioner. Doc. No. 323. On July 13,
2016, the Court received a letter from the Federal Public
Defender's Office, stating the office would not be filing
any other pleadings on Petitioner's behalf. Accordingly,
on July 13, 2016, the Court issued a Minute Order removing
the Federal Public Defender as counsel for Petitioner and
allowing Petitioner to proceed with his case pro se. Doc. No.
324. The Court directed the United States to file a response
to Petitioner's Motion by August 4, 2016 and allowed
Petitioner to file an optional reply by August 18, 2016.
August 3, 2016, the United States filed its Response in
Opposition to Defendant's Motion. Doc. No. 327.
Petitioner did not file a reply.
to 28 U.S.C. § 2255, a prisoner may move the court to
vacate, set aside, or correct a sentence “upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack.” 28 U.S.C.
shall hold an evidentiary hearing on a motion under Section
2255 “[u]nless the motion and the files and records of
the case conclusively show that the prisoner is entitled to
no relief.” 28 U.S.C. § 2255(b). As discussed
below, the Court finds that Petitioner's arguments lack
merit. Because the record conclusively shows that Petitioner
is not entitled to relief, a hearing is not warranted in this
Defendant Does Not Qualify for Relief Under Johnson v.
argues that he qualifies for relief pursuant to the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2016). In Johnson, the Court held
that imposing a sentence pursuant to the “residual
clause” of the Armed Career Criminal Act
(“ACCA”) of 1984 is unconstitutional.
Id. at 2557-58. Pursuant to the ACCA, defendants in
illegal firearms cases who have previously been convicted
three or more times for “violent” felonies, face
tougher sentences. Id. at 2555. The definition of a
“violent” felony includes any felony that
“involves conduct that presents a serious potential
risk of physical injury to another.” Id.
(quoting 18 U.S.C. § 924(e)(2)(B)). This portion of the
definition of a ...