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United States v. Mazzini

United States District Court, D. New Mexico

March 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
MARCOS MAZZINI, Defendant.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         This matter is before the Court, sua sponte under rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, on Defendant Marcos Mazzini's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody, filed on June 23, 2016. [CV Doc. 1; CR Doc. 172] Defendant contends that the enhancement of his sentence as a career offender under the United States Sentencing Guidelines (U.S.S.G.), § 4B1.1, is invalid in light of the United States Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015). On August 29, 2016 Defendant filed a supplement to his § 2255 motion, which contends that the career-offender enhancement also is invalid because one of the felony offenses used to enhance his sentence recently was reduced to a misdemeanor conviction. [CV Doc. 4; CR Doc. 176] For the reasons explained below, Defendant's § 2255 motion and supplemental § 2255 motion will be dismissed with prejudice, a certificate of appealability will be denied, and judgment will be entered.

         I. BACKGROUND

         On March 1, 2001, Defendant was charged by Indictment with: (1) Counts 1, II, and III-assault with a deadly weapon of a person assisting an officer or employees of the United States in the performance of official duties, in violation of 18 U.S.C. § 111(a)(1) and (b) and 18 U.S.C. § 2; and (2) Count V-attempted escape from custody in violation of 18 U.S.C. § 751(a) and 18 U.S.C. § 2. [CR Doc. 1] Defendant and the Government entered into a plea agreement, in which Defendant agreed to plead guilty to Counts 1 and V of the Indictment and the parties agreed to stipulate, pursuant to Fed. R. Crim. P. 11(e)(1)(C) “that the sentence shall be ninety-six (96) months imprisonment, which shall be served consecutive to the defendant's sentence in CR. NO. 95-538 MV.” [CR Doc. 146 at 2, 3]

         The Probation Office prepared a Presentence Investigation Report (PSR), which determined that the base offense level for the crime of assault with a deadly weapon of a person assisting an officer or employee of the United States in the performance of official duties is 15.[1]See U.S.S.G. § 2A2.2. To the base offense level, the PSR added: (1) two points pursuant to U.S.S.G. § 2A2.2(b)(1), because the offense involved more than minimal planning; (2) four points pursuant to U.S.S.G. § 2A2.2(b)(2)(B), because Defendant used a dangerous weapon; (3) six points pursuant to U.S.S.G. § 2A2.2(b)(3)(C), because one of the victims sustained permanent injury; and (4) three points pursuant to U.S.S.G. § 3A1.2, because the victim was an official victim. [PSR at 9-10] Because U.S.S.G. § 2A2.2(b)(3) provides that “the cumulative adjustments from (2) and (3) shall not exceed 9 levels, ” Defendant's adjusted offense level was reduced one point, from 30 to 29. [PSR at 10] After a multiple count adjustment under U.S.S.G. § 3D1.4, Defendant's combined adjusted offense level was increased to 30. [PSR at 11]

         Defendant received a three-point reduction for acceptance of responsibility under U.S.S.G. § 3E1.1, resulting in a total offense level of 27. [PSR at 11] The PSR calculated that Defendant had 14 criminal history points, resulting in a criminal history category of VI. [PSR at 16]

         The PSR also determined that Defendant was a career offender under U.S.S.G. § 4B1.1, because he had two prior qualifying felony convictions:

On April 3, 1995, he was sentenced on a conviction for Possession of PCP for Sale in the Superior Court of Los Angeles County, California, Case No. YA022501, and on August 30, 1999, he was sentenced on a conviction for RICO, conspiracy to Distribute 5 Grams and More of Cocaine Base, Violent Crimes in Aid of Racketeering Activity - Attempted Murder, and Using and Carrying Firearms During and in Relation to Drug Trafficking Crime in the United States District Court, District of New Mexico, Case NO. CR 95-538-MV.

[PSR at 11] However, the career offender enhancement did not increase Defendant's total offense level, because “[t]he table at 4B1.1 has an offense level of 24, which is less than the offense level . . . of 30.” [PSR at 11; see U.S.S.G. § 4B1.1] Additionally, the career offender enhancement did not increase Defendant's criminal history category, because Defendant's criminal history points already placed him in criminal history category VI. See U.S.S.G. § 4B1.1 (“A career offender's criminal history category in every case shall be Category VI.”).

         Based on a total offense level of 27 and a criminal history category of VI, the guideline range for imprisonment was 130 to 162 months. [PSR at 20] Because the guideline imprisonment range exceeded the maximum sentence of 120 months for Count 1 and 60 months for Count V, the PSR determined that the maximum statutory sentence for each count was the guideline imprisonment range under U.S.S.G. § 5G1.1(a). [PSR at 20]

         On April 25, 2002, the Court adopted the findings in the PSR, accepted the plea agreement, “which includes a specific sentence of 96 months, ” and sentenced Defendant to 96 months of imprisonment as to Count I, a concurrent term of 60 months of imprisonment as to Count V, for a total term of 96 months of imprisonment, to run consecutively to the sentence imposed in CR 95-538MV. [CR Docs. 162, 167] The Court rendered judgment on Defendant's conviction and sentence on May 1, 2002. [CR Doc. 167] Defendant did not file a notice of appeal and, therefore, his conviction became final ten days later. See United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006) (“If the defendant does not file an appeal, the criminal conviction becomes final upon the expiration of the time in which to take a direct criminal appeal.”); Fed. R. App. P. 4(b)(1)(A)(i) (2002 revision) (providing ten days from the entry of judgment to file a notice of appeal).

         On June 23, 2016, Defendant filed an Application For Leave To File A Second Or Successive Motion To Vacate, Set Aside or Correct Sentence 28 U.S.C. § 2255 By A Prisoner In Federal Custody in the United States Court of Appeals for the Tenth Circuit. See In re: Mazzini, No. 16-2156, Doc. 01019644826 (10th Cir. June 24, 2016). The Tenth Circuit determined that Defendant's application was deficient, because it did not include a copy of the successive § 2255 motion that he wishes to file. Id., Doc. 0109645728. In response, Defendant submitted a letter stating that “[t]he motion [he is] seeking to file in the District Court is not a successive [motion, but] is my first 2255 motion.” [CV Doc. 1; CR Doc. 172] Attached to Defendant's letter was his proposed first § 2255 motion, which was completed on the Court's form Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence By A Person In Federal Custody. [CV Doc. 1; CR Doc. 172]

         The United States Court of Appeals for the Tenth Circuit denied Defendant's motion to file a second or successive § 2255 motion as “unnecessary because it appears Movant has not previously filed a § 2255 motion.” [CV Doc. 1-1; CR Doc. 172-1] The Tenth Circuit transferred Defendant's proposed first §2255 motion to this Court pursuant to 28 U.S.C. § 1631.[2] [CV Doc. 1-1; CR Doc. 172-1]

         On August 29, 2016, Defendant filed a supplement to his § 2255 motion. [CV Doc. 4; CR Doc. 176] In his supplement, Defendant contends that the enhancement of his sentence under the career-offender provision of the U.S.S.G. should be invalidated because “his prior felony conviction for Possession of PCP for Sale . . . has [been] re-designated a misdemeanor pursuant to California Proposition 47.” [CV Doc. 4; CR Doc. 176] In support of this contention, Defendant attached the following documents to his supplement: (1) a copy of his Application/Petition For Resentencing in the Superior Court of California, County of Los Angeles; and (2) a copy of the Superior Court's Minute Order on Defendant's Application, which is dated August 5, 2016. [Doc. 4 at 3-5]

         II. DISCUSSION

         A. ...


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