United States District Court, W.D. Washington, Seattle
Honorable Richard A. Jones United States District Judge
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.
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).
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.
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
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 . . . .”
§ 2255 Motion in Case No. C16-1248-RAJ
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.
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.
§ 2255 Motion in ...