United States District Court, E.D. Michigan, Southern Division
ORDER DENYING PETITION FOR HABEAS RELIEF [ECF No.
Victoria A. Roberts United States District Judge
Moreno (“Moreno”) moves to vacate, set aside, or
correct his sentence pursuant to 28 U.S.C. § 2255.
makes two arguments. First, he argues his sentence violates
the due process clause of the Fifth Amendment because the
Presentence Investigation Report (“PSIR”) writer
made two errors, both of which were relied on by the Court
and served as a basis for his sentence in 2016 as a career
Moreno argues his appellate counsel was ineffective in
violation of the Sixth Amendment because he failed to
challenge the criminal history points assessed to
Moreno's state court convictions - all of which led to
the determination that Moreno had a state court conviction
that established him as a career offender.
reasons that follow, the Court DENIES
Moreno's petition for habeas relief.
FACTUAL AND PROCEDURAL BACKGROUND
has an extensive history of drug crimes which resulted in his
career offender status. Moreno pled guilty in state court to
three separate offenses but received a single sentence for
the delivery and manufacture of marijuana and felony firearm
in 2006. Moreno also pled guilty to conspiracy to distribute
controlled substances in federal court before the Honorable
David Lawson in 2008. Judge Lawson erroneously classified
Moreno as a career offender and sentenced him as such.
2016, Moreno pled guilty to conspiracy to distribute and to
possess with intent to distribute heroin in violation of 21
U.S.C. § 846 and possession with intent to distribute
heroin in violation of 21 U.S.C. § 841(a)(1). The Court
sentenced Moreno to prison for 151 months, and four years of
supervised release. In crafting that sentence, the Court
acknowledged Moreno's extensive criminal history and
career offender status. By the time of his 2016 convictions,
the district court correctly classified Moreno as a career
offender based on his state court convictions and his federal
conviction in 2008.
filed a timely appeal from the judgment of conviction.
Moreno's appeal renewed his objection to the career
offender classification and - for the first time, challenged
the constitutionality of the career offender guidelines.
United States v. Moreno, 685 Fed.Appx. 474, 475 (6th
specifically argued that it was error for the district court
to rely on the 2008 career offender classification at his
2016 sentencing because he was not a career offender in 2008.
Moreno, 685 Fed.Appx. at 475. The Sixth Circuit
agreed with Moreno that he was incorrectly classified as a
career offender in 2008; by that time, he only had one
qualifying offense. Id. at 476. But the appellate
court also said the district court correctly calculated
Moreno's guideline range because he did qualify as a
career offender by the time of the 2016 appeal; his counsel
even conceded the point. Moreno, 685 Fed.Appx. at
Sixth Circuit also ruled that to the extent the district
court relied on the erroneous career offender classification
in crafting Moreno's sentence, the error was harmless.
Id. Importantly, the appellate court ruled that
Moreno's 2008 designation as a career offender was not
the basis for this 2016 sentence. Id. The Sixth
Circuit found “the district court's thorough
discussion of [Moreno's] criminal history and the
circumstances of this case make it clear that [Moreno's]
commission of a drug offense while under sentence for a prior
drug offense was decisive in crafting his 
Sixth Circuit also denied Moreno's constitutional
challenge to the career offender guidelines. The Court found
that “sentencing guidelines are advisory rather than
mandatory.” Moreno, 685 Fed.Appx. at 476
(citing United States v. Booker, 543 U.S. 220, 234
(2005)). According to the Sixth Circuit, district courts have
substantial discretion in matters of sentencing and may
depart from sentencing guidelines. Moreno, 685
Fed.Appx. at 476.
Sixth Circuit denied Moreno's appeal and affirmed the
judgment. Moreno filed a petition for certiorari in the
United States Supreme Court. It was denied. Moreno ...