United States District Court, W.D. North Carolina, Statesville Division
Kenneth D. Bell United States District Judge
MATTER is before the Court on the Petitioner's
Motion to Vacate Sentence under 28 U.S.C. § 2255 [Doc.
April 2, 2013, Petitioner Manuel Ocampo, Jr.,
(“Petitioner”) pleaded guilty to conspiracy to
distribute and possession with intent to distribute
methamphetamine, cocaine, heroin, and marijuana, in violation
of 21 U.S.C. §§ 846, 841(b)(1)(A), and
841(b)(1)(B). [Criminal No. 5:12-cr-00019-KDB-DCK-1
(“CR”), Doc. 51: Acceptance and Entry of Guilty
probation officer prepared a Presentence Investigation Report
(PSR) in advance of Petitioner's sentencing. [CR Doc. 62:
PSR]. In the PSR, the probation officer calculated
Petitioner's Total Offense Level (TOL) to be 35 and his
criminal history score to be four, which included two points
for a December 4, 2000 felony conviction in Orange County,
California, for unlawful possession of a controlled
substance. A criminal history score of four
established a Criminal History Category of III. [CR Doc. 62
at ¶¶ 30, 36, 42]. Pursuant to U.S. Sentencing
Guidelines (the “Guidelines”), based upon a TOL
of 35 and a Criminal History Category of III, the guideline
range for imprisonment was 210 to 262 months. [Id.
at ¶ 59].
4, 2014, the Court sentenced Petitioner to a term of
imprisonment of 210 months. [CR Doc. 72 at 2: Judgment].
Judgment on this conviction was entered on June 11, 2014.
[Id.]. Petitioner directly appealed this Judgment to
the United States Court of Appeals for the Fourth Circuit.
[CR Doc. 75]. The Fourth Circuit affirmed the Judgment of
this Court. [CR Doc. 104].
moved for a reduction in his sentence pursuant to 18 U.S.C.
§ 3582(c)(2) under 782 Amendment to the Guidelines. [CR
Doc. 106]. The Court granted this motion and amended
Petitioner's sentence to 168 months' imprisonment
based on an amended guidelines range of 168 to 210
months' imprisonment. [CR Doc. 108].
January 5, 2018, Petitioner filed the pending motion. [Doc.
1]. The Court conducted an initial screening of
Petitioner's motion and ordered the Government to
respond. [Doc. 2]. The Government responded and Petitioner
replied. [Docs. 4, 8]. This matter is now ripe for
STANDARD OF REVIEW
4(b) of the Rules Governing Section 2255 Proceedings provides
that courts are to promptly examine motions to vacate, along
with “any attached exhibits and the record of prior
proceedings” in order to determine whether the
petitioner is entitled to any relief on the claims set forth
therein. After examining the record in this matter, the Court
finds that the motion to vacate can be resolved without an
evidentiary hearing based on the record and governing case
law. See Raines v. United States, 423 F.2d 526, 529
(4th Cir. 1970).
28 U.S.C. § 2255, a petitioner is entitled to relief
when his original sentence “was imposed in violation of
the Constitution or laws of the United States, or [when] the
court was without jurisdiction to impose such
sentence.” 28 U.S.C. § 2255(a). Petitioner argues
that because his California felony conviction, which was used
to enhance his federal sentence, was reclassified as a
misdemeanor, the two points added to his criminal history
score for this conviction should be removed and his Criminal
History Category should be revised to reflect this reduction.
[Id.]. Petitioner claims that he received notice of
this reclassification on August 28, 2017. [Id. at
4]. Plaintiff seeks to be resentenced to a term of 151
month's imprisonment. [Doc. 1 at 12].
Government makes several arguments in opposition to
Plaintiff's motion to vacate, including timeliness, lack
of retroactivity on collateral review for the type of
reclassification at issue, lack of an error cognizable under
28 U.S.C. § 2255, and that reclassification of the
offense does not have any effect on the propriety of the
Court's assignment of two criminal history points for it
in the first place. Because this last argument is
determinative, the Court need not address the other three.
Petitioner received the two criminal history points at issue
under § 4A1.1(b) of the Guidelines, which assigns
“two points” for “each prior sentence of
imprisonment of at least sixty days” not counted in
section 4A1.1(a). U.S.S.G. § 4A1.1(b). Petitioner
received a sentence of three years' imprisonment for his
California offense, well over the 60-day threshold. [CR Doc.
62 at ¶ 36]. Accordingly, any change to the
classification of this California offense does not impact the
assignment of these points, even ...