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United States v. Romero

United States District Court, D. Montana, Great Falls Division

October 12, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
LOUIS JAMES ROMERO, Defendant/Movant.

          ORDER DENYING § 2255 MOTION, AND DENYING IN PART AND GRANTING IN PART CERTIFICATE OF APPEALABILITY

          Brian Morris, United States District Court Judge

         Defendant/Movant Louis James Romero filed a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255 on November 1, 2016. Romero is a federal prisoner proceeding pro se.[1]

         I. Preliminary Review

         The motion is subject to preliminary review before the United States is required to respond. The Court must determine whether “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.

         A petitioner “who is able to state facts showing a real possibility of constitutional error should survive Rule 4 review.” Calderon v. United States Dist. Court, 98 F.3d 1102, 1109 (9th Cir. 1996) (“Nicolas”) (Schroeder, C.J., concurring) (referring to Rules Governing § 2254 Cases). “[I]t is the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer.” Advisory Committee Note (1976), Rule 4, Rules Governing § 2254 Cases, cited in Advisory Committee Note (1976), Rule 4, Rules Governing § 2255 Proceedings.

         II. Background

         Romero was indicted with four co-defendants on charges of conspiracy to possess with intent to distribute at least 500 grams of methamphetamine (Count 1) and a detectable amount of cocaine (Count 2), both violations of 21 U.S.C. §§ 846 and 841(a)(1); possession with intent to distribute (Count 3) and distribution (Count 4) of the same amount of methamphetamine; and possession with intent to distribute at least 500 grams of a substance containing methamphetamine (Count 7). Counts 3, 4, and 7 alleged violation of 21 U.S.C. § 841(a)(1). Counts 1, 2, 3, and 4 were alleged to have occurred in Browning and Great Falls, Montana, from November 2010 through June 2012. Count 7 was alleged to have occurred on June 27, 2012, in Shelby, Montana. See Indictment (Doc. 20) at 2-6.[2]

         The parties filed a fully executed plea agreement on August 10, 2012. Romero agreed to plead guilty to Count 2, the cocaine charge, and to waive his right to appeal the sentence if he did not object to the guideline calculation and the sentence was within the resulting range. The United States agreed to dismiss the other counts and to seek a three-level downward adjustment for acceptance of responsibility, provided Romero did not obstruct justice. See Plea Agreement (Doc. 63) at 2-3 ¶ 2 paras. 1, 3; 7-8 ¶ 6; 8-9 ¶ 8(a).

         The United States filed an Information under 21 U.S.C. § 851 on August 13, 2012, alleging that Romero previously had been convicted of a felony drug offense in Washington, specifically, conspiracy to possess marijuana with intent to deliver it. See Information (Doc. 66) at 2. Filing of the Information elevated the maximum penalty from 20 to 30 years in prison. See 21 U.S.C. §§ 841(b)(1)(C), 851(a)(1). Romero acknowledged the prior conviction and the enhanced penalty in the plea agreement. See Plea Agreement at 2-3 ¶ 2 para. 2. Ten days later, on August 23, 2012, Romero pled guilty to Count 2 in open court. See Minutes (Doc. 76).

         A presentence report was prepared. Romero was held responsible for 500 grams to 2 kilograms of cocaine. His base offense level was 26, and he received a three-point reduction for acceptance of responsibility. Romero also had two prior felony convictions for controlled substance offenses. One was the conviction alleged in the United States's Information. See Presentence Report ¶ 47. The other was a California conviction for possession of marijuana for sale. See Presentence Report ¶ 45. These two convictions meant that he qualified as a career offender. See U.S.S.G. § 4B1.1(a). As a result, his base offense level was increased to 34, and his criminal history category was increased from IV to VI. See Id. § 4B1.1(b) & (2); Presentence Report ¶ 33. Without the career offender enhancement, Romero's advisory guideline range would have been 70 to 87 months. With it, the range was 188 to 235 months. Romero was sentenced on December 12, 2012, to serve 235 months in prison, to be followed by six years' supervised release. See Minutes (Doc. 113); Judgment (Doc. 134) at 2-3.

         On January 6, 2015, Romero moved for a sentence reduction under 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the Sentencing Guidelines. The Court denied his motion due to the fact that Romero had been sentenced as a career offender. The Ninth Circuit affirmed on January 25, 2017. See Mot. to Reduce Sentence (Doc. 135); Amended Judgment Denying Reduction (Doc. 137) at 1; Mem. (Doc. 161) at 2, United States v. Romero, No. 16-30007 (9th Cir. Jan. 25, 2017) (unpublished mem. disp.).

         Nearly four years after the original judgment was entered, Romero filed a motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. See. Mot. § 2255 (Doc. 157); Br. in Supp. (Doc. 158). He moved to amend his § 2255 motion on September 29, 2017. See Supp. (Doc. 167).

         III. Claims

         Romero asserts that his two prior felony drug convictions do not qualify as predicate offenses for the career offender enhancement. See Mot. § 2255 (Doc. 157) at 4 ¶ 12. He relies on the Supreme Court's decisions concerning the divisibility or indivisibility of statutes, see Mathis v. United States, __ U.S. __, 136 S.Ct. 2243, 2256 (2016), and Descamps v. United States, __ U.S. __, 133 S.Ct. 2276, 2281 (2013), as well as circuit decisions applying those cases, see, e.g., United States v. Hinkle, 832 F.3d 569, 575-77 (5th Cir. 2016), cited in Br. in Supp. (Doc. 158) at 2.

         Second, Romero appears to contend that his federal sentence was unreasonable when it was imposed. He claims that most people with prior drug-trafficking offenses receive less time than he did. See Br. in Supp. at 5-6. He further argues that he “received a sentence higher than he would have received if he had gone to trial.” Id. at 6.

         Third, Romero argues that the character of his prior convictions changed when California and Washington amended the statutes he was convicted of violating. See Br. in Supp. at 2-4. With respect to the Washington conviction, he implicitly asserts a claim of ineffective assistance of counsel. See Id. at 3.

         Romero's motion to amend his § 2255 motion alleges that Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), and Welch v. United States, __ U.S. __, 136 S.Ct. 1257 (2016), are pertinent to his case. See Mot. to Am. (Doc. 167) at 2. He also claims that a ...


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