United States v. Ramos

          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 ...