United States District Court, D. Montana, Helena Division
CHARLES C. LOVELL JUDG
the Court is Defendant's Motion to Vacate, Set Aside, or
Correct Sentence pursuant to 28 U.S.C. § 2255, which is
deemed to have been filed on October 26, 2015. (Doc. 143.)
Defendant filed a previous section 2255 motion, which was
denied on June 21, 2010, (Doc. 118), but the instant motion
is not a second or successive petition because it presents a
ground that was not ripe during the first habeas proceeding.
See Stewart v. United States, 646 F.3d 856, 860
(11thCir. 2011); see also United States v.
Buenrostro, 638 F.3d 720, 724 (9th Cir. 2011)
(claims not ripe during first habeas proceeding not subject
to gate-keeping provision of section 2255(h)). The parties
requested that this section 2255 motion be stayed pending
final decision in a pending appeal in the Ninth Circuit.
(Doc. 151). That appeal was finalized on December 20, 2016.
United States v. Diaz, 838 F.3d 968 (9th
Ogburn was convicted by jury trial on November 10, 2004, of
the offense of Conspiracy to Distribute more than 500 grams
but less than 1.5 kilograms of methamphetamine, in violation
of 21 U.S.C. § 846. Prior to trial, the government filed
a section 851 Information charging Defendant with a prior
felony drug conviction. (Doc. 32.) At the conclusion of the
trial, the jury's verdict found specifically that
Defendant conspired to distribute more than 500 grams but
less than 1.5 kilograms of methamphetamine. The jury's
verdict also found specifically that Defendant possessed a
firearm during the commission of his offense. (Doc. 49.)
the March 3, 2005, sentencing hearing, Court found that
Defendant did have a prior felony drug conviction
(see Doc 64-2, PSR ¶ 35) and that the enhanced
penalty provision of a twenty-year mandatory minimum was
applicable pursuant to 21 U.S.C. § 841(a)(1) (Doc. 64.).
In addition to the twenty-year mandatory minimum sentence,
the Court found that Defendant's guideline range (before
application of the mandatory sentence) was 235-293 months.
The Court imposed a term of custody of 260 months, followed
by ten-year term of supervised release. Defendant's
conviction was affirmed on appeal. United States v.
Ogburn, 176 Fed.Appx. 734 (9th Cir. 2006)
(unpublished). Defendant's sentence was returned to the
district court on a limited remand to reconsider the sentence
under an advisory Sentencing Guidelines protocol, but after
this Court reaffirmed Defendant's sentence, the Ninth
Circuit panel found that it was not unreasonable and the
sentence was affirmed. United States v. Ogburn, 234
Fed.Appx. 621 (9thCir. 2007) (unpublished).
September 18, 2008, Defendant Ogburn filed his first section
2255 motion to vacate, set aside, or correct sentence. (Doc.
106.) This Court denied that section 2255 motion on June 10,
2010. (Doc. 118.)
October 8, 2015, this Court reduced Defendant's sentence
to the mandatory minimum 240 months when it granted
Defendant's motion pursuant to 18 U.S.C. §
3582(c)(2) for reduction pursuant to Amendment 782, United
States Sentencing Guidelines. (Doc. 134.)
now challenges the application of the twenty-year mandatory
minimum sentence in a section 2255 motion. Defendant asserts
that, without the mandatory minimum sentence, his guideline
range (which was ultimately 240-293 months) should be
recomputed without reference to the § 851 penalty
enhancement based upon his prior drug felony conviction.
Defendant asserts that he has a new law, fact, or evidence
that justifies his failure to bring this claim before the
Court within the one-year period of limitations applicable to
section 2255 motions. 28 U.S.C. § 2255(f).
law or fact arises pursuant to passage of Proposition 47 by
California voters on November 4, 2014, effective on the next
day, which had the effect of allowing certain convicted
felons to request redesignation of their felonies as
misdemeanors. See Cal. Penal Code §
1170.18(f). This Defendant Ogburn has done, and his
1999 felony conviction for possession of a controlled
substance (methamphetamine), see PSR ¶ 35, was
redesignated as a misdemeanor by the Glenn County Superior
Court (Willows, California) on May 6, 2015. (Doc. 122-1.) The
Court notes, however, that Defendant's felony drug
conviction was not vacated and that Defendant actually served
almost 4 years for this drug offense (one year and eight
months served of the original 3 year prison term, plus an
additional 24 months over the course of three revocations).
(Doc. 64-2, PSR ¶ 35.) Defendant asks that his Criminal
History Category be recomputed and that he be re-sentenced
without the twenty-year mandatory minimum.
Defendant Ogburn's claim is foreclosed by Diaz,
which is a similar case in the Ninth Circuit that explains
Proposition 47's effect on an § 841 sentencing
enhancement. In that case, a Ninth Circuit panel holds that
“California's Proposition 47, offering
post-conviction relief by reclassifying certain past felony
convictions as misdemeanors, does not undermine a prior
conviction's felony-status for purposes of § 841.
California's later actions cannot change the fact that
[the defendant] committed his federal offense ‘after .
. . a felony drug offense [had] become final.'”
Diaz, 838 F.3d at 974. The Diaz holding
governs this case, requiring the same result here, and
therefore the Court concludes that Defendant's section
2255 motion for sentence reduction must be denied.
Accordingly, IT IS HEREBY ORDERED that Defendant's Motion
to Vacate Under 28 U.S.C. § 2255 (Doc. 143) is DENIED.
that the Defendant has failed to make a substantial showing
of the denial of a constitutional right and that no jurist of
reason would debate the correctness of denying Defendant
collateral relief, IT IS FURTHER ORDERED that a certificate
of appealability is DENIED.
Clerk shall notify the Defendant of entry of this Order.
 “A person who has completed his
or her sentence for a conviction, whether by trial or plea,
of a felony or felonies who would have been guilty of a
misdemeanor under this act had this act been in effect at the
time of the offense, may file an application before the trial
court that entered the judgment of conviction in his or her
case to have the ...