WILLIAM Q. HAYES, District Judge.
The matter before the Court is the motion under 28 U.S.C. § 2255 filed by Defendant/Petitioner. (ECF No. 80).
On December 29, 2009, Defendant/Petitioner entered a plea of guilty to the Information pursuant to a Plea Agreement to Counts 1, 5 and 10 of the Indictment charging Defendant with conspiracy to deal firearms without a license in violation of 18 U.S.C. §§ 922(a)(1)(A), 924(a)(1)(D) and 371 (Count 1), and possession of an unregistered firearm in violation of 16 U.S.C. §§ 5861(d) and 5871 (Counts 5 and 10). (ECF No.30). In the Plea Agreement, Defendant/Petitioner admitted, in relevant part,
Id. at 5. The Plea Agreement further stated:
(ECF No. 30 at 12-13).
The Presentence Report concluded in relevant part, "Pursuant to USSG § 4B1.1(a), the defendant meets the criteria to be categorized as a career offender because . . . the defendant has at least two prior felony convictions for crimes of violence (i.e. one for PC69, Resisting an Executive Officer by Means of Force, two prior convictions for PC 273.5(a), Corporal Injury to Spouse/Cohabitant, and an aggravated assault conviction in Philadelphia)." Presentence Report at 18.
At the time of sentencing, the Court found that the base offense level pursuant to U.S.S.G. § 2K2.1(a) starts at a 26 because the offense involved "a firearm that is described in 26 U.S.C. § 5845(a); and [] defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence
Defendant/Petitioner moves the Court to vacate his sentence on the grounds that the prior enhancements in his sentence are no longer cognizable as predicate career enhancements due to the decision of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015). Plaintiff United States of America contends that the motion to vacate sentence should be denied on the grounds that Johnson has no application to this case, any claim in the petition other than a claim based upon Johnson is time barred, and Defendant/Petitioner has waived his right to challenge his sentence.
28 U.S.C. § 2255 provides that "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." 28 U.S.C. § 2255.
In this case, the record conclusively shows that the Defendant has waived his right to bring a § 2255 motion. In exchange for the Government's concessions in the Plea Agreement, the Defendant waived "to the full extent of the law, any right to appeal or to collaterally attack the conviction and sentence, including any restitution order, unless the court imposes a custodial sentence greater than the high end of the guideline range (or statutory mandatory minimum, if applicable) recommended by the Government pursuant to this Plea Agreement at the time of sentencing. (ECF No. 30 at 12-13). This waiver is clear, express, and unequivocal. Plea agreements are contractual in nature, and their plain language will generally be enforced if the agreement is clear and unambiguous on its face. United States v. Jeronimo, 398 F.3d 1149, 1153 (9th Cir. 2005).
At the time of sentencing, the Government recommended an adjusted offense level of 28 and a resulting guideline range of 140-175 months. (ECF No. 47). The parties jointly recommended a sentence of 140 months. Id. The Court imposed a total sentence of 140 months. (ECF No. 56). The sentence imposed was within the guideline range recommended by the Government pursuant to the Plea Agreement at the time of sentencing. Pursuant to the terms of the Plea Agreement, the Defendant waived his right to appeal or to collaterally attack his conviction and sentence in this case. Even without the waiver, the motion under 28 U.S.C. § 2255 is barred by the "1-year period of limitation" provided in 28 U.S.C. § 2255(f).
Finally, the Defendant/Petitioner presents no exception to the waiver in the Plea Agreement or any grounds for relief under Section 2255 based upon Johnson.
In this case, the sentence imposed upon Defendant/Petitioner was not enhanced pursuant to the residual clause in 18 U.S.C. § 924(e)(2)(B)(ii). In this case, the base offense level started at a 26 because the offense involved "a firearm that is described in 26 U.S.C. § 5845(a); and [] defendant committed any part of the instant offense subsequent to sustaining at least two felony convictions of either a crime of violence or a controlled substance." U.S.S.G. § 2K2.1(a)(1). The term "crime of violence" in U.S.S.G. § 4B1.2
Clearly established authority in the Ninth Circuit holds that California Penal Code § 273.5 is a categorical crime of violence under the elements clause of 18 U.S.C. § 16(a) which applies to "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another." 18 U.S.C. § 16(a).
IT IS HEREBY ORDERED that the motion under 28 U.S.C. § 2255 filed by Defendant/Petitioner (ECF No. 80) is denied.