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Chavez-Ramirez v. United States

United States District Court, D. Hawaii

November 8, 2016

SUSAN CHAVEZ-RAMIREZ, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. CR. No. 09-00050 SOM (01)

          ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE; ORDER DENYING CERTIFICATE OF APPEALABILITY; ORDER DENYING REQUEST FOR APPOINTMENT OF COUNSEL

          Susan Oki Mollway United States District Judge

         I. INTRODUCTION.

         Defendant Susan Chavez-Ramirez was convicted of two drug crimes and sentenced to concurrent terms of 158 months imprisonment and 8 years of supervised release, as well as a $200 special assessment. See Judgment ECF No. 177.

         On October 16, 2012, the Ninth Circuit Court of Appeals affirmed the Judgment in a Memorandum. See ECF No. 189.

         On August 11, 2016, nearly 4 years after the Ninth Circuit's decision, Chavez-Ramirez filed a motion under 28 U.S.C. § 2255, arguing that she should be resentenced based on Johnson v. United States, 135 S.Ct. 2551 (2015), and Amendment 794, which amends U.S.S.G. § 3B1.2. The court denies the motion and declines to issue a certificate of appealability. The court also denies her request for appointment of counsel.

         II. BACKGROUND INFORMATION

         Chavez-Ramirez pled guilty without a plea agreement to Counts 1 and 2 of the Indictment, which charged her with conspiring to distribute and possess with intent to distribute 500 grams or more of a substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846; and with possessing with intent to distribute 500 grams or more of a substance containing methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). See ECF Nos. 15, 139. She was sentenced on January 23, 2012, to concurrent terms of 158 months imprisonment and 8 years of supervised release, as well as a $200 special assessment. See ECF No. 176. Judgment was entered on January 25, 2012. See ECF No. 177. See ECF Nos. 77, 79. Chavez-Ramirez was not sentenced as a career offender, and she did not ask for a minor role reduction pursuant to U.S.S.G. § 3B1.2. See Transcript of Sentencing, ECF No. 185.

         At the sentencing hearing, the court adopted the Presentence Investigation Report, ECF No. 183. See Transcript at 3, ECF No. 185, PageID # 1190. The Presentence Investigation Report indicated that Chavez-Ramirez had a Total Offense Level of 35 and a criminal history category of VI, giving her an Advisory Guideline Range of 292 to 365 months imprisonment. Id. She was subject to a 20-year mandatory minimum given the Government's filing of a Special Information under 21 U.S.C. § 851. The Government moved for a downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), arguing that Chavez-Ramirez had provided substantial assistance in the investigation or prosecution of another person. Id. at 4, PageID # 1191; ECF No. 172. The court granted that motion and sentenced Chavez-Ramirez to concurrent terms of 158 months imprisonment and 8 years of supervised release, as well as a $200 special assessment. See Sentencing Transcript at 14, 24, ECF No. 185, PageID # 1201, 1211.

         On appeal, Chavez-Ramirez argued that this court had erred in granting the downward departure without considering factors unrelated to her substantial assistance. See ECF No. 189, PageID # 1219. The Ninth Circuit affirmed. Id.

         III. ANALYSIS.

         Under 28 U.S.C. § 2255, a court may grant relief to a federal prisoner who challenges the imposition or length of his or her incarceration on any of the following four grounds: (1) that the sentence was imposed in violation of the Constitution or laws of the United States; (2) that the court was without jurisdiction to impose such sentence; (3) that the sentence was in excess of the maximum authorized by law; or (4) that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a).

         A judge may dismiss a § 2255 petition if “it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief.” Rule 4(b), Section 2255 Rules. A court need not hold an evidentiary hearing if the allegations are “palpably incredible” or “patently frivolous” or if the issues can be conclusively decided on the basis of the evidence in the record. See Blackledge v. Allison, 431 U.S. 63, 76 (1977); see also United States v. Mejia-Mesa, 153 F.3d 925, 929 (9th Cir. 1998) (noting that a “district court has discretion to deny an evidentiary hearing on a § 2255 claim where the files and records conclusively show that the movant is not entitled to relief”).

         A. Johnson Does Not Apply.

         To the extent Chavez-Ramirez is asserting that she should be resentenced under Johnson, the court denies that part of the ...


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