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United States v. Contreras

United States District Court, D. New Mexico

August 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
PHILLIP NAPOLEON CONTRERAS, Defendant.

          PROPOSED FINDINGS AND RECOMMENDED DISPOSITION

          WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE

         This matter is before me on Phillip Contreras's Motion Under 28 U.S.C. § 2255 and Johnson v. United States, 135 S.Ct. 2551 (2015), to vacate, set aside, or correct his sentence (CV Docs. 1, 10, 18; CR Docs. 42, 50, 58).[1] Contreras argues that several of his previous felony convictions no longer qualify as “violent” felonies under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The United States contends that Contreras waived his right to collaterally attack his conviction and sentence and is therefore not entitled to relief. I recommend that the Court deny Contreras's motion.

         Background

         Contreras pleaded guilty, pursuant to a plea agreement, to a two-count information on August 7, 2013. (CR Doc. 24.) Count 1 charged him with possession with intent to distribute five grams and more of methamphetamine and aiding and abetting, in violation of 18 U.S.C. § 841(a)(1) and (b)(1)(B) and 18 U.S.C. § 2. (Id.) Count 2 charged him with being a felon in possession of a firearm and ammunition in violation 18 U.S.C. §§ 922(g)(a) and 924(a)(2). (Id.)

         As part of his plea agreement, Contreras waived certain rights on appeal. Contreras's “Waiver of Appeal Rights” reads:

. . . In addition, the defendant agrees to waive any collateral attack to this conviction and the sentence imposed, including any fine, pursuant to 28 U.S.C. §§ 2241, 2255, or any other extraordinary writ, except on the issue of counsel's ineffective assistance in negotiating or entering this plea or this waiver.

(CR Doc. 27 at 7.)

         The Presentence Investigation Report (“PSR”) detailed at least three violent felonies. Because Contreras pleaded to a controlled substance offense and to being a felon in possession of a firearm, he qualified as both an armed career criminal under the ACCA and a career offender under the Sentencing Guidelines.

         The PSR calculated Contreras's criminal history category as a level VI and his offense level at 31, after a three point reduction for acceptance of responsibility. At the sentencing hearing, the United States moved for a one level reduction, leaving Contreras with a criminal history category VI, offense level 30, and Guidelines' range of 168-210 months' incarceration. The Court imposed a sentence of 168 months as to each count, with the sentences to run concurrently. (CR Doc. 37.)

         Pursuant to 18 U.S.C. § 924(a)(2), a person convicted of being a felon in possession of a firearm in violation of § 922(g) may be fined, imprisoned for not more than ten years, or both, unless that person is deemed an armed career criminal pursuant to § 924(e)(1), in which that person shall be sentenced to at least fifteen years' imprisonment.

         Discussion

         Contreras argues that he no longer qualifies as an Armed Career Criminal because several of his prior felony convictions no longer qualify as violent felonies for purposes of the ACCA. Thus, contends Contreras, his sentence must be amended. The United States raises a threshold issue to which Contreras did not respond: whether this challenge falls within the scope of his waiver of appeal rights, and whether that waiver is enforceable.

         A court must conduct a hearing on a § 2255 motion “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b); see also United States v. Lopez, 100 F.3d 113, 119 (10th Cir. 1996). Under this standard, “the petitioner bears the burden of alleging facts which, if proved, would entitle him to relief.” Hatch v. Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) (quotation omitted), overruled on other grounds by Daniels v. United States, 254 F.3d 1180, 1188 n.1 (10th Cir. 2001) (en banc). Accordingly, if the prisoner alleges facts which, if believed, cannot be grounds for relief, there is no need for a hearing. Id. Additionally, the petitioner's “allegations must be specific and particularized; conclusory allegations will not suffice to warrant a hearing.” Id. (citation and internal punctuation omitted). If the claims relate to occurrences in the courtroom or evidence in the record, then the Court need not conduct a hearing. Machibroda v. United States, 368 U.S. 487, 494-95 (1962).

         Because the record alone establishes that Contreras's § 2255 motion should be denied, I did not hold an ...


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