United States District Court, D. Montana, Great Falls Division
ORDER DENYING § 2255 MOTION, AND DENYING IN PART
AND GRANTING IN PART CERTIFICATE OF APPEALABILITY
Morris, United States District Court Judge
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
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.
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.
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)
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 ¶
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).
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.
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.).
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.
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.
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.
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.
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 ...