United States v. Louis Romero

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 21, 2019
• Docket: 18-35936
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-35936

Plaintiff-Appellee, D.C. Nos. 4:16-cv-00111-BMM 4:12-cr-00051-BMM-3 v.

LOUIS JAMES ROMERO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Submitted October 15, 2019**

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Louis James Romero appeals from the district court’s order denying his

motion to vacate his sentence under 28 U.S.C. § 2255. We have jurisdiction under

28 U.S.C. § 2253. Reviewing de novo, see United States v. Fultz, 923 F.3d 1192,

1194 (9th Cir. 2019), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Romero argues that, because of subsequent changes in Washington and

California criminal law regarding the possession of marijuana, he should be

resentenced without being designated as a career offender under the Federal

Sentencing Guidelines. However, Romero provided no documentation to establish

that his criminal record has, in fact, been affected by either state’s laws. Further,

even if Romero had received Washington and/or California post-conviction relief,

he would not be entitled to resentencing. At the time of Romero’s federal offense,

he had sustained two prior controlled substance offenses, which qualified him as a

career offender. See U.S.S.G. § 4B1.2(c) (2011). Any change in the status of

those prior offenses under state law cannot affect that determination. See United

States v. Yepez, 704 F.3d 1087, 1091 (9th Cir. 2012) (en banc) (“State

courts cannot be given the authority to change a defendant’s federal sentence by

issuing a ruling that alters history and the underlying facts.”); see also United

States v. Diaz, 838 F.3d 968 (9th Cir. 2016), cert. denied, 137 S. Ct. 839 (2017)

(state order that reclassified a defendant’s felony conviction as a misdemeanor did

not change the historical fact that defendant had been convicted of a felony for

purposes of a federal statutory sentencing enhancement).

We treat appellant’s additional arguments as a motion to expand the

certificate of appealability. So treated, the motion is denied. See 9th Cir. R. 22-

1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999).

2 18-35936 AFFIRMED.

3 18-35936