United States District Court, D. Colorado
ORDER DENYING DEFENDANT'S MOTION TO
VACATE
CHRISTINE M. ARGUELLO UNITED STATES DISTRICT JUDGE
This
matter is before the Court on Defendant Rafael Ramos's
Motion to Correct Sentence Pursuant to 28 U.S.C. § 2255.
(Doc. # 88.) For the following reasons, the Court denies the
motion.
I.
BACKGROUND
On
November 10, 2005, Defendant pled guilty to Possession of a
Firearm by a Convicted Felon in violation of 18 U.S.C. §
922(g)(1). (Doc. # 48.) In the plea agreement, the parties
set forth the following estimate of the sentencing range
called for by the United States Sentencing Guidelines:
(A) Base offense level 20;
(B) Two-level increase for an offense involving three or more
firearms, resulting in a level 22;
(C) Four-level increase for a firearm with an obliterated
serial number, resulting in a level 26;
(D) Three-level downward adjustment for timely acceptance of
responsibility, resulting in a level 23;
(E) Tentative criminal history category of V.
(Doc. # 48 at 8.)
The
parties found that an offense level of 23 and the tentative
criminal history category of V resulted in an advisory
guideline range of 84-105 months. (Id.)
However,
the parties acknowledged that although the Court would
consider their estimate, it was not bound by the position of
any party and would ultimately make its own determination of
the guideline range. (Id.) The Court calculated
Defendant's criminal history category and guideline range
consistently with the estimates in the plea agreement and
sentenced Defendant to 84 months' imprisonment. (Doc. #
71 at 2.)
On June
20, 2016, Defendant, acting pro se, filed a Motion
to Vacate, Set Aside, or Correct Sentence under 28 U.S.C.
§ 2255. (Doc. # 73.) Defendant argued for an adjustment
of his sentence based on the Supreme Court's decision in
United States v. Johnson, 135 S.Ct. 2551 (2015). The
Government responded on August 22, 2016, contending that the
Court should deny Defendant's motion because (1)
Johnson did not apply to his case; (2) his claim was
procedurally defaulted; and (3) he was not sentenced under
the residual clause of the Armed Career Criminal Act. (Doc. #
79 at 2.) On November 21, 2016, approximately three months
after the Government's Response, Defendant moved to
withdraw his motion, stating: “Defendant has …
read the Government's Response to Motion to Reduce
Sentence and has become convinced that in fact the Johnson
decision does not apply to his case.” (Doc. # 86.) On
November 22, 2016, the Court granted the Motion and withdrew
Defendant's Motion to Correct Sentence under 28 U.S.C.
§ 2255. (Doc. # 87.)
Currently
before the Court is another 28 U.S.C. § 2255 motion
filed pro se by Defendant on January 8, 2018. (Doc.
# 88.) Defendant seeks adjustment of his sentence based on
ineffective counsel. (Id.) The Government responded
to the motion on January ...