United States District Court, D. Hawaii
ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE, OR CORRECT SENTENCE
Derrick K. Watson United States District Judge.
November 13, 2013, Petitioner Daniel Raymond Torres pled
guilty to, and was sentenced to 151 months imprisonment for,
one count of distributing 50 grams or more of
methamphetamine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(A). Relying on 28 U.S.C. § 2255,
Torres now seeks to vacate and reduce his sentence based upon
the application of California Proposition 47, the Safe
Neighborhoods and Schools Act, Cal. Penal Code §
1170.18, which, in 2016, enabled him to reclassify three
California felony theft convictions from the 1990s to
misdemeanors. Because Torres already completed his sentences
for the three reclassified state convictions, however, he is
not eligible for a reduction of his federal sentence under
Proposition 47. Nor would his current request to recalculate
his criminal history score under the sentencing guidelines
provide him the relief he presently seeks. Accordingly, after
careful consideration of Torres' Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence
(“Section 2255 Motion”), the record, and the
relevant legal authority, the Section 2255 Motion is DENIED.
Indictment And Guilty Plea
was charged in a two-count Indictment on August 2, 2012 with
(1) conspiracy to distribute and to possess with intent to
distribute 50 grams or more of methamphetamine on January 19,
2012, in violation of 21 U.S.C. §§ 841(a)(1),
(b)(1)(A), and 846 (Count I); and (2) distribution of 50
grams or more of methamphetamine on January 17, 2012, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)
(Count II). Dkt. No. 4 (8/2/12 Indictment). There was also an
associated criminal forfeiture allegation. He was arrested on
August 19, 2012 and detained pending trial. Dkt. No. 16
(Arrest Warrant); Dkt. No. 19 (9/7/12 Detention Order).
21, 2013, Torres pled guilty to Count II of the Indictment,
pursuant to a plea agreement, before United States District
Judge Leslie E. Kobayashi. Dkt. No. 42 (5/21/13 Court
Minutes); Dkt. No. 43 (5/21/13 Memorandum of Plea Agreement).
At the change of plea hearing, the court accepted Torres'
plea of guilty and deferred acceptance of the plea agreement
until after preparation of a Presentence Report
(“PSR”), and the Government agreed to dismiss
Count I at the time of sentencing. Id. On August 19,
2013, the case was reassigned to this Court. Dkt. No. 44
(8/19/13 Order of Reassignment).
Sentence And Post-Sentencing Relief
November 13, 2013, this Court sentenced Torres to a term of
imprisonment of 151 months together with five years of
supervised release. Dkt. No. 58 (11/13/13 Court Minutes). At
the sentencing hearing, the Court accepted the plea agreement
and granted the Government's oral motion to dismiss Count
I. Dkt. No. 38 (11/13/13 Court Minutes); Dkt. No. 59
(11/18/13 Judgment). After granting the Government's
request for a one-level timely plea adjustment under U.S.S.G.
§ 3E1.1(b), and considering Torres' allocution,
along with counsels' arguments, the Court sentenced
Torres at the bottom of the guidelines range of 151 to 188
months (offense level 29, criminal history category VI). Dkt.
No. 38 (11/13/13 Court Minutes); Dkt. No. 59 (11/18/13
Judgment); see also PSR at 6, 13, 25, Dkt. No. 60.
2015 Motion For Reduction Of Sentence
October 14, 2015, the Court reduced Torres' term of
imprisonment from 151 to 130 months, granting his motion for
reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2)
for retroactive application of Amendment 782. Dkt. No. 61.
That order took effect on November 1, 2015. Id.
Section 2255 Motion
timely filed his Section 2255 Motion on November 7, 2016.
Dkt. No. 63. The sole ground for relief asserted is that
“the passing of California's Proposition 47 by law
re-classified three of [Torres'] California Convictions
from Felonies to Misdemeanors.” Section 2255 Motion at 4. In
support, Torres attached three minute orders from the
Superior Court of California, County of Orange, each granting
his petition pursuant to Proposition 47 to reclassify a
felony violation to a misdemeanor. See Section 2255
Motion, Ex. 1 (4/25/16 Minute Order); Ex. 2 (4/21/16 Minute
Order); Ex. 3 (8/2/16 Minute Order). The United States
verified and confirmed that Torres' California state
felony convictions in 1996 (Case No. 96HF0175), 1997 (Case
No. 96HF1152), and 1999 (Case No. 99HF0102) were reclassified
as misdemeanors. See Mem. In Opp'n at 5-6 n.2,
Dkt. No. 69.
asks the Court to “re-open” his federal sentence
because “the State sentence was used to increase the
Federal Sentence [and the state sentence] was successfully
removed after the Federal Sentence was imposed.”
Section 2255 Motion at 4. He requests that the Court
“re-sentence [him] with a proper calculation under the
Sentencing Guideline[s] minus the Three previous[ly] used
Felony Convictions.” Section 2255 Motion at 12. In his
Reply brief, Torres reiterates that he “has had [three]
of his prior state sentences removed, ” and therefore
“there is no argument that Petitioner does not have
[three] prior felony convictions that were used to increase
[his] federal sentence[.]” Reply at 2, Dkt. ...