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Diaz-Cortez v. United States

United States District Court, W.D. Washington, Seattle

May 3, 2017

ERIBAY DIAZ-CORTEZ, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER

          Honorable Richard A. Jones United States District Judge

         I. INTRODUCTION

         This matter comes before the Court on pro se Petitioner Eribay Diaz-Cortez's Motions Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence By a Person in Federal Custody. Case No. C16-1248-RAJ (Dkt. # 1); Case No. C16-1687-RAJ (Dkt. # 1). For the reasons that follow, the Court DENIES Diaz-Cortez's motions.

         II. BACKGROUND

         On December 3, 2015, Diaz-Cortez pleaded guilty to a charge that he violated 18 U.S.C. § 922(g)(5)(A), which prohibits the possession of a firearm by an alien who is unlawfully in the United States. Case No. CR15-289-RAJ, Dkt. ## 22, 23 (W.D. Wash. Dec. 3, 2015).

         On March 4, 2016, the Court sentenced Diaz-Cortez to serve forty-two months in prison. Dkt. # 30. In doing so, the Court adopted the Presentence Investigation Report (“PSR”), which recommended three sentencing enhancements: (1) a two-level enhancement under U.S.S.G. § 2K2.1(b)(1)(A) because Diaz-Cortez possessed three firearms, PSR ¶ 14; (2) a two-level enhancement under U.S.S.G. § 2K2.1(b)(4)(A) because two of the firearms that Diaz-Cortez possessed had been stolen, PSR ¶ 15; and (3) a four-level enhancement under U.S.S.G. § 2K2.1(b)(6)(B) because Diaz-Cortez possessed the firearms in connection with a separate felony offense, PSR ¶ 16.

         On August 8, 2016, Diaz-Cortez filed a § 2225 motion to reduce his sentence pursuant to the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015). On September 13, 2016, filed a second § 2255 motion claiming ineffective assistance of counsel. The Court ordered that a separate cause number be opened for the second motion.

         III. LEGAL STANDARD

         Under 28 U.S.C. § 2255(a), a federal prisoner may file a motion to vacate, set aside, or correct his or her sentence “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 . . . .”

         IV. DISCUSSION

         A. § 2255 Motion in Case No. C16-1248-RAJ

         In his first § 2255 motion, Diaz-Cortez contends he was sentenced improperly in light of Johnson, 135 S.Ct. 2551. In Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act (“ACCA”) violates the Due Process Clause because it is unconstitutionally vague. Diaz-Cortez argues that the Supreme Court's holding in Johnson renders his sentencing enhancements illegal.

         Johnson does not afford Diaz-Cortez the relief he requests. The Court did not sentence him under the ACCA. Moreover, the U.S.S.G. enhancements applied to his sentence are not similar to the residual clause of the ACCA. Even if they were, the Supreme Court recently held that U.S.S.G. enhancements “are not subject to a vagueness challenge under the Due Process Clause.” Beckles v. United States, 137 S.Ct. 886, 892 (2017). The Court DENIES Diaz Cortez's § 2255 motion in Case No. C16-1248-RAJ.

         B. ยง 2255 Motion in ...


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