Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Jones

United States District Court, D. Hawaii

January 29, 2018

OPHERRO JONES (03), Defendant.


          Leslie E. Kobayashi United States District Judge.

         Before the Court is Defendant/Petitioner Opherro Jones's (“Jones” or “Defendant”) Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“§ 2255 Motion”), filed on June 9, 2016. [Dkt. no. 1011.] Jones filed a Memorandum in Support of the § 2255 Motion on April 24, 2017. [Dkt. no. 1105.] Plaintiff/Respondent the United States of America (“the Government”) filed its response to the § 2255 Motion (“Response”) on May 9, 2017, and a Supplemental Memorandum in Opposition (“Supplemental Response”) on May 12, 2017. [Dkt. nos. 1115 (sealed), 1116.] Jones filed his reply on May 15, 2017. [Dkt. no. 1117.] Jones's § 2255 Motion is hereby denied, and a certificate of appealability is also denied, for the reasons set forth below.


         On September 12, 2013, Jones and seventeen others (“Defendants”) were charged in a multi-count indictment. [Dkt. no. 1.] Jones was charged with: racketeering conspiracy, in violation of 18 U.S.C. § 1962(d) (“Count 1”); and violent crimes in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(3) and 18 U.S.C. § 2 (“Count 4”). The Indictment alleged that Defendants “were members and associates of a criminal organization in Hawaii known as the ‘USO Family, '” an enterprise that the Indictment described as “the dominant prison gang in the District of Hawaii and . . . a major prison gang nationally.” [Indictment at ¶¶ 1, 3.] Among the USO Family's primary activities were selling controlled substances and other contraband within the prisons and the filing of fraudulent tax returns. [Id. at ¶¶ 5-6.] Count 1 alleged that Jones and five other Defendants “knowingly and intentionally conspired . . . to conduct and participate, directly and indirectly, in the conduct of the affairs of the enterprise through a pattern of racketeering activity, ” including: mail and wire fraud; possession, with intent to distribute, methamphetamine and marijuana; conspiracy to possess, with intent to distribute, methamphetamine and marijuana; and bribery. [Id. at pgs. 7-9.] Count 4 alleged that Jones and four other Defendants “for the purpose of gaining entrance to, and maintaining and increasing position within the USO Family . . . unlawfully and knowingly assaulted, and aided and abetted in assault, resulting in serious bodily injury upon B.L.” [Id. at pgs. 12-13.]

         Jones initially entered a plea of not guilty, [Minutes, filed 9/24/13 (dkt. no. 48), at 2] but, on March 28, 2014, he withdrew his plea and pled guilty to Count 1, pursuant to a plea agreement. [Dkt. nos. 243 (Minutes), 246 (Memorandum of Plea Agreement (“Plea Agreement”)).] The Plea Agreement stated the Government intended to argue at sentencing that Jones was a career offender, but Jones was free to contest that point. [Plea Agreement at ¶ 10.b(i).] Jones's guilty plea was accepted and he was adjudged guilty on April 15, 2014. [Dkt. no. 261.]

         Jones's sentencing hearing was held on May 27, 2015. The Plea Agreement was accepted and the factual findings in the presentence report were adopted. [Minutes, filed 5/27/15 (dkt. no. 913) (“Sentencing Minutes”); Presentence Investigation Report (“PSR”), filed 6/3/15 (dkt. no. 916).] The PSR found that Jones's base offense level was fourteen, with: a two-level increase because methamphetamine and marijuana were smuggled into a prison facility for distribution to other inmates; a two-level increase because Jones, and others associated with the USO Family, bribed prison guards to facilitate the commission of the offense; and a four-level increase because Jones was considered one of the organizers or leaders of the offense. His adjusted offense level was therefore twenty two. [Id. at ¶¶ 81-87.] However, Jones was determined to be a career offender, making his offense level thirty two. [Id. at ¶ 98 (citing United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) § 4B1.1).] After a total decrease of three levels for acceptance of responsibility, Jones's total offense level was twenty-nine. [Id. at ¶¶ 99-101.] His criminal history category was VI because he was a career offender, but his criminal category would have been VI based on criminal history points. [Id. at ¶¶ 113-15.] Jones's imprisonment range under the Guidelines was therefore 151 to 188 months, and his range for supervised release was 1 to 3 years. [Id. at ¶¶ 139, 142.] The Government's motion for a downward departure was granted, reducing Jones's offense level to twenty-seven, resulting in a Guidelines sentencing range of 130 to 162 months. [Sealed Motion for a Downward Departure and Sentencing Recommendation Pursuant to USSG § 5K1.1 and 18 U.S.C. § 3553(a), filed 1/28/15 (dkt. no. 839), at 5; Trans. of 5/27/15 Sentencing Hrg. (“Sentencing Trans.”), filed 5/10/17 (dkt. no. 1114), at 45.] This Court further varied downward in its discretion to avoid sentencing disparity. [Sentencing Trans. at 45.]

         Jones was sentenced to 110 months of imprisonment and 3 years of supervised release, and he was ordered to pay $4, 576.00 in restitution, and a $100 special assessment. The Government's oral motion to dismiss Count 4 was also granted. [Sentencing Minutes at 2, 4.] The Judgment in a Criminal Case (“Judgment”) was filed on May 29, 2015. [Dkt. no. 914.] Jones did not file an appeal.

         In the § 2255 Motion, filed on June 9, 2016, Jones contended that the career offender enhancements to his sentence violated his due process rights, in light of Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson”), and Welch v. United States, 136 S.Ct. 1257 (2016). Jones asserted that the residual clause of U.S.S.G. § 4B1.2 was applied at his sentencing and “the residual clause is void ab initio” under Johnson and Welch.[1][§ 2255 Motion at 5.] In his subsequent Memorandum in Support, Jones changed his argument.[2] Jones recognizes that Beckles v. United States, 137 S.Ct. 886 (2017), “holds that the void-for-vagueness doctrine animating Johnson . . . does not apply to the Guidelines.” [Mem. in Supp. of § 2255 Motion at 4.] Thus, Jones now argues “his sentence violates due process because the career offender guideline's residual clause is so inscrutable it produces an arbitrary and unreliable starting point and, ultimately in his case, a substantively unreasonable sentence.” [Mem. in Supp. of § 2255 Motion at 22-23.]

         The Government responds that: because the Memorandum in Support raises new claims, it is an amended motion, and it is untimely; even if the amended motion is timely, the new claims are procedurally barred; the Plea Agreement waived Jones's right to bring collateral challenges to his sentence; and, if this Court reaches the merits of Jones's new claims, his Guidelines sentencing range was correctly determined.


         Section 2255(a) states:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         This district court has described the standards applicable to § 2255 motions as follows:

A court may dismiss a § 2255 motion 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.” R. 4(b), Rules Governing Section 2255 Proceedings. A court need not hold an evidentiary hearing if the allegations are “palpably incredible [or] patently frivolous, ” Blackledge v. Allison, 431 U.S. 63, 76 (1977) (internal quotation marks and citation omitted), or if the issues can be conclusively decided on the basis of the evidence in the record. See 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”). Conclusory statements in a § 2255 motion are insufficient to require a hearing. United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993). A petitioner must “allege specific facts which, if true, would entitle him to relief.” United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir. 2003) (internal quotation marks and citation omitted).

United States v. Sherman, Cr. No. 16-00169 JMS, 2017 WL 4560150, at *1 (D. Hawai`i Oct. 12, 2017) (alteration in Sherman).

         The issues raised in Jones's § 2255 Motion are legal issues that “can be conclusively decided on the basis of the evidence in the record, ” including the record of the underlying proceedings. See Mejia-Mesa, 153 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.