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Lopez v. United States

United States District Court, D. Hawaii

September 12, 2016

Hector Lopez Petitioner,
v.
United States of America, Respondent. Cr. No. 97-01117 ACK (02)

          ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          Alan C. Kay Sr. United States District Judge

         Petitioner 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. No. 322.

         PROCEDURAL BACKGROUND

         On 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 On July 29, 1998, the indictment was superseded to charge Petitioner with: Count 1: Conspiracy to Distribute 1 Kilogram or More of Heroin; Count 2: Conspiracy to Distribute More Than 100 Grams of Heroin;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.

         On 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.

         Petitioner 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. No. 321.

         On June 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.

         On August 3, 2016, the United States filed its Response in Opposition to Defendant's Motion. Doc. No. 327. Petitioner did not file a reply.

         STANDARD

         Pursuant 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. § 2255(a).

         A court 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 case.

         DISCUSSION

         I. Defendant Does Not Qualify for Relief Under Johnson v. United States

         Petitioner 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. ยง 924(e)(2)(B)). This portion of the definition of a ...


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