Gamino v. United States

• Court: District Court, N.D. California
• Decided: May 13, 2022
• Docket: 4:19-cv-01881
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ADRIAN GAMINO, Case No. 19-cv-01881-HSG

8 Plaintiff, ORDER DENYING MOTION TO VACATE 9 v. Re: Dkt. No. 1 10 USA, 11 Defendant.

12 13 I. BACKGROUND 14 On April 18, 2019, Defendant Adrian Gamino (“Defendant”) filed a pro se motion to 15 vacate, set aside, or correct his sentence. See ECF No. 36 in 11-CR-00595-LHK and ECF No. 67 16 in 11-CR-00596-LHK. Defendant was sentenced to 240-month concurrent sentences in the two 17 cases for conspiracy to possess with intent to distribute and distribution of methamphetamine. See 18 id. Defendant’s motion argues that his prior convictions should not have qualified as controlled 19 substance offenses in light of the Supreme Court’s decisions in Sessions v. Dimaya, 138 S. Ct. 20 1204 (2018), and Johnson v. United States, 576 U.S. 591 (2015). Defendant contends that his 21 sentence was unlawfully increased as a result. 22 On August 28, 2020, the Court ordered the United States Attorney’s Office to file a response to 23 Defendant’s motion. See Dkt. No. 47 in 11-CR-00595 and Dkt. No. 77 in 11-CR-00596.1 Although the 24 order afforded Defendant the opportunity to file a memorandum of points and authorities in support of 25 his 2255 Motion, he did not do so. 26

27 1 The cases were originally assigned to the Honorable Lucy H. Koh, who imposed the sentences II. ANALYSIS 1 Defendant’s motion to vacate, set aside, or correct his sentence fails because the sentencing 2 court properly determined that his three prior convictions for possession of a controlled substance for 3 sale were “drug trafficking offenses,” warranting a classification as a career offender and a sentence of 4 240 months of confinement. And nothing about Sessions or Johnson changes that conclusion. 5 The Ninth Circuit has consistently affirmed that under the categorical approach required by 6 Taylor v. United States, 495 U.S. 575, 602 (1990), a conviction for possession of methamphetamine 7 for sale qualifies as a drug trafficking offense for purposes of the federal sentencing guidelines. 8 United States v. Valle-Montalbo, 474 F. 3d. 1197, 1200-1201 (9th Cir. 2007). Without dispute, 9 Defendant was convicted, on three separate occasions, of possession of a controlled substance for sale 10 in violation of California Health and Safety Code Section 11378, which prohibits the “possess[ion] for 11 sale” of certain controlled substances. See Dkt. No. 55 in 11-CR-0595 (presentence report) at ¶¶ 38, 12 45, 48, 49. Methamphetamine is a schedule II controlled substance that is illegal to possess under 13 California Health and Safety Code Section 11055(d)(2). Based on this undisputed record, the 14 sentencing court properly applied the categorical approach to determine that Defendant was a career 15 offender under U.S.S.G § 4B1.1. 16 Ninth Circuit authority, including Valle-Montalbo, was binding on the sentencing court, 17 and is binding on this Court, unless it is clearly irreconcilable with intervening higher authority. 18 The Ninth Circuit has cautioned that only in cases of “clear irreconcilability” can district courts 19 “consider themselves bound by the intervening higher authority and reject the prior opinion of [the 20 Ninth Circuit] as having been effectively overruled.” Miller v. Gammie, 335 F.3d 889, 899–900 21 (9th Cir. 2003) (en banc). “This is a high standard,” which “requires [the district court] to look at 22 more than the surface conclusions of the competing authority.” Rodriguez v. AT & T Mobility 23 Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (quotation omitted). 24 Neither Sessions nor Johnson is irreconcilable with the controlling Ninth Circuit precedent 25 so as to meet the Miller standard. In striking down the Armed Career Criminal Act’s (ACCA’s) 26 residual clause in Johnson, the Supreme Court emphasized that its decision “does not call into question 27 application of the [Armed Career Criminal] Act to the [Act’s] four enumerated offenses, or to the 1 remainder of the Act’s definition of a violent felony,” including an offense that “has as an element the 2 use, attempted use, or threatened use of physical force against the person of another” and a felony 3 offense that “is burglary, arson, or extortion, [or] involves the use of explosives,” 18 U.S.C. § 4 924(e)(2)(B)G)-Gii); Johnson, 576 U.S. at 606. In Sessions, the Supreme Court held that 18 U.S.C. § 5 16(b), part of the definition of “crime of violence,” is unconstitutionally vague, just like the residual 6 clause in Johnson. But in this case, Defendant had three prior convictions for drug trafficking 7 offenses. Those offenses are specifically enumerated in the Guidelines, and were thus unaffected by 8 || the Supreme Court’s later cases regarding the residual clause or the crime of violence definition. See 9 || U.S.S.G. § 2L1.2, Comment 2 (defining a “drug trafficking offense” as “an offense under federal, 10 state, or local law that prohibits . . . the possession of a controlled substance (or a counterfeit 11 substance) with intent to manufacture, import, export, distribute, or dispense’). So the above-cited 12 || Ninth Circuit authority remains binding, and requires denial of Defendant’s motion. 13 || I. CONCLUSION 14 Defendant’s Motion to Vacate, Set Aside or Correct Sentence is DENIED. The Clerk is 3 15 directed to close this file. 16 IT IS SO ORDERED. 17 || Dated: 5/13/2022 Alayped § Sbl □□□ HAYWOOD S. GILLIAM, JR. 19 United States District Judge 20 21 22 23 24 25 26 27 28