United States District Court, D. Idaho
MEMORANDUM DECISION AND ORDER
B.
Lynn Winmill, Chief U.S. District Court Judge.
INTRODUCTION
Pending
before the Court is Petitioner's Amended Motion to
Vacate/Set Aside/Correct Sentence pursuant to 28 U.S.C.
§ 2255 (Civ. Dkt. 13; Crim. Dkt. 186)[1] and the
Government's Response (Civ. Dkt. 14). Also pending before
the Court is Petitioner's Request for Appointment of
Counsel (Civ. Dkt. 2). Having reviewed the filings, the Court
will deny the motion and dismiss this action.
BACKGROUND
Petitioner
Rojas pleaded guilty on August 25, 2010 to one count of
conspiracy to possess with intent to distribute fifty grams
or more of actual methamphetamine, in violation of 21 U.S.C.
§§ 846 and 841(a)(1) and (b)(1)(A), and one count
of attempted escape from custody in violation of 18 U.S.C.
§ 751(a). See Third Superseding Indictment,
Crim. Dkt. 58; Plea Agreement, Crim. Dkt. 112;
Minute Entry for Change of Plea Hearing, Crim. Dkt.
120. Defendant was convicted on both counts on January 14,
2011. See Judgment, Crim. Dkt. 150. The Court
calculated the Defendant's base offense level as 32 under
the United States Sentencing Guidelines Manual § 2D1.1,
and the total offense level as 36. See Statement of
Reasons, Crim. Dkt. 185. The Court later amended the
calculation of the total offense level, pursuant to a joint
motion by the parties. Id.
Petitioner
alleges that her sentence was “enhanced upward by two
levels for being in possession of a firearm in violation of
18 U.S.C. Section 924(c).” See Amended Motion
at 7, Dkt. 13. Petitioner further alleges that her conviction
for conspiracy to distribute 50 grams or more of
methamphetamine in violation of 21 U.S.C. § 846 and
841(a)(1) constituted a “crime of violence” for
the purposes of the enhancement. Id. Petitioner
argues that in light of Johnson v. United States,
135 S.Ct. 2551 (2015), the definition of a “crime of
violence” in § 924(c)(3) is unconstitutionally
vague, and thus her enhancement under 924(c) should be
vacated. Because Petitioner was not convicted of a
“crime of violence” under 924(c), the Court will
deny her § 2255 motion and dismiss the case.
ANALYSIS
Petitioner
was convicted of conspiracy to distribute 50 grams or more of
actual methamphetamine in violation of 21 U.S.C. §§
846 and 841(a)(1) and (b)(1)(A). Section 841(a)(1) prohibits
the knowing or intentional distribution of a controlled
substance, and Section 841(b)(1)(A) imposes a mandatory
minimum term of 10 years for distribution of 50 grams or more
of methamphetamine in violation of 841(a)(1). See 21
U.S.C. §§ 841(a)(1), (b)(1)(A). Section 846 states
that persons convicted of conspiracy to distribute under
§ 841(a)(1) or (b)(1)(A) shall be subject to the same
penalties as those prescribed for actual distribution.
See Id. § 846. Petitioner was also convicted of
attempted escape from custody in violation of 18 U.S.C.
§ 751(a), which imposes a sentence of not more than five
years for attempted escape from custody. 18 U.S.C. §
751(a). Pursuant to the Sentencing Guidelines §
2D1.1(b)(1), Petitioner's offense level was increased by
2 levels for possession of a firearm during the commission of
a crime defined under 21 U.S.C. § 841(b)(1)(A). See
Gov.'s Response at 5, Civ. Dkt. 14.
Petitioner
was not convicted of a crime under 924(c), and none of her
crimes of conviction include or refer to “crimes of
violence” as defined in 924(c)(3) or otherwise. Nor did
Petitioner receive a sentencing enhancement for the
conviction or commission of a “crime of violence,
” as defined in 924(c)(3) or otherwise. Thus, neither
the constitutionality of § 924(c)(3), nor of the
definition of “crimes of violence, ” has any
bearing on Petitioner's conviction or sentence.
Petitioner
brings the instant motion solely on the grounds that her
sentence enhancement should be struck down because §
924(c) is unconstitutional. Because § 924(c) is
inapplicable here, Petitioner has not alleged any grounds
upon which her conviction or sentence should be vacated, set
aside, or corrected. Therefore, the Court will deny her
§2255 motion and dismiss this case. Accordingly,
IT IS ORDERED:
1. Petitioner's Amended Motion to Vacate/Set
Aside/Correct Sentence pursuant to 28 U.S.C. § 2255
(Civ. Dkt. 13; Crim. Dkt. 186) is DENIED.
2. Petitioner's Request for Appointment of Counsel (Civ.
Dkt. 2) is DENIED as moot.
3. This case is DISMISSED.
4. The Court shall issue a separate Judgment as required by
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