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Ramos v. United States

United States District Court, E.D. Virginia, Alexandria Division

July 24, 2018

GILBERTO RAMOS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          LEONIE M. BRINKEMA, UNITED STATES DISTRICT JUDGE

         Before the Court is movant Gilberto Ramos's ("movant" or "Ramos") Motion to Vacate Under 28 U.S.C. § 2255 [Dkt. No. 200], in which he asks the Court to vacate his sentence and re-sentence him to a shorter term of imprisonment because he was sentenced pursuant to a statutory mandatory minimum triggered by a previous state felony conviction that has since been recalled and redesignated as a misdemeanor. For the reasons that follow, Ramos's motion will be dismissed.

         I. BACKGROUND

         On August 30, 2012, a grand jury in the Eastern District of Virginia returned a superseding indictment against Ramos and two co-conspirators that charged each defendant with conspiring to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 841, 846. [Dkt. No. 61]. Three weeks later, the government filed a notice pursuant to 21 U.S.C. § 851 that Ramos had previously been convicted in California state court of one count of felony Possession of Marijuana for Sale in violation of California Health & Safety Code § 11359. [Dkt. No. 72]. As the § 851 notice explained, because this prior conviction was a felony drug offense, it exposed Ramos to enhanced punishment under 21 U.S.C. §§841, 846. Ramos proceeded to trial, and a jury convicted him of the single count in the indictment. [Dkt. No. 127].[1] In addition, on the special verdict form, the jury indicated that it found that Ramos had conspired to distribute 5 kilograms or more of cocaine. Id.

         According to the Presentence Report ("PSR"), the conspiracy in which Ramos was engaged revolved around the importation of cocaine from Mexico and its subsequent distribution along the East Coast of the United States of America. PSR ¶¶ 24-26. In particular, the conspirators regularly coordinated shipments of cocaine from Mexico to California and then smuggled multiple-kilogram quantities of the drug to the Washington, D.C., and New York areas in long-haul tractor trailers. Id. After the drugs were transported to the East Coast and sold to other distributers, the conspirators smuggled bulk shipments of cash back to California. Id. ¶¶ 27-28, 35-36. The PSR stated that Ramos "led the conspiracy by organizing "the receipt of cocaine from sources in Mexico, the packaging of the cocaine and shipment of the cocaine across the United States, and the transfer of the proceeds back to California." Id. at A-2 to A-3.

         Based on the quantity of drugs involved in the conspiracy, as well as Ramos's role as an organizer or leader in the conspiracy, the Probation Office calculated the Adjusted Offense Level under the Sentencing Guidelines as a 40. Id. Worksheet A. When combined with Ramos's criminal history score of I, [2] this produced a guideline range of 292 to 365 months imprisonment. At the sentencing hearing, Judge Gerald Bruce Lee[3] adopted this as the appropriate guideline range, see Sentencing Tr. [Dkt. No. 164] 29:17-:24, but imposed a below-guidelines sentence of 240 months imprisonment, the statutory mandatory minimum given the enhancement for Ramos's previous drug conviction, Id. at 47:6-:8. The Fourth Circuit affirmed the district court's judgment on appeal and the Supreme Court denied Ramos's petition for a writ of certiorari. United States v. Ramos. 571 Fed.Appx. 177 (4th Cir.) (per curiam). cert, denied. 135 S.Ct. 882 (2014).

         On November 17, 2015, Ramos, proceeding pro se. filed a motion to vacate his conviction under 28 U.S.C. § 2255 [Dkt. No. 177], which raised a variety of arguments that are unrelated to the present motion. The district court denied Ramos's motion [Dkt. No. 183], and the Fourth Circuit declined to issue a certificate of appealability. Ramos v. United States. 670 Fed.Appx. 81 (4th Cir. 2016) (per curiam).

         In November 2016, California voters approved the Control, Regulate, and Tax Adult Use of Marijuana Act, 2016 Cal. Legis. Serv. Prop. 64 ("Proposition 64"), which reduced various drug offenses, including the possession of marijuana for sale, from felonies to misdemeanors. In addition, Proposition 64 provides that an individual who has completed his previously imposed sentence for a conviction under a statute which Proposition 64 reduces from a felony to a misdemeanor may file an application before the trial court that entered the judgment of conviction to have the felony redesignated as a misdemeanor. See Cal. Health & Safety Code § 11361.8(e). If such an application is granted, the conviction "shall be considered a misdemeanor... for all purposes." Id. § 11361.8(h). On February 14, 2017, the Los Angeles County Superior Court granted Ramos's motion to redesignate his previous state conviction as a misdemeanor. Mot. [Dkt. No. 200] Ex. A. Based on this redesignation, Ramos filed the present § 2255 motion, arguing that his California state conviction no longer qualifies as a "felony drug offense" for the purposes of an enhancement under § 841, and that Ramos's current sentence, which may reflect the § 841 enhancement that was triggered by the government's § 851 notice, therefore violates both the plain language of § 841 and Ramos's "constitutional rights to due process [and] protection from cruel and unusual punishment," as well as "principles of federalism." Mot. 6. The motion has been fully briefed, and the Court has reviewed the papers and finds that oral argument would not aid the decisional process. For the reasons that follow, the Motion to Vacate will be dismissed.

         II. DISCUSSION

         A. Standard of Review

         Although federal convictions are ordinarily final, an individual who is in custody pursuant to a federal sentence may file a motion to vacate his conviction or sentence under 28 U.S.C. § 2255. Such a motion will be granted only if "the sentence was imposed in violation of the Constitution or laws of the United States," the "court was without jurisdiction to impose such sentence," the "sentence was in excess of the maximum authorized by law," or the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). The burden is on the movant to establish the claimed error by a preponderance of the evidence. See Miller v. United States. 261 F.2d 546, 547 (4th Cir. 1958) (per curiam).

         B. Analysis

         1. Second or Successive $ 2255 Motion

         In general, before a defendant can file a second or successive motion for relief under § 2255, the motion must be certified by the appropriate court of appeals to contain either "newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense" or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." 28 U.S.C. § 2255(h). Although the current motion is Ramos's second motion under § 2255, he did not obtain an ...


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