United States District Court, M.D. Florida, Tampa Division
RASHEED LAMAR ROBINSON a/k/a Richardo Lascelles Dwight Ashmeade, Plaintiff,
UNITED STATES OF AMERICA, Defendant.
RICHARD A. LAZZARA UNITED STATES DISTRICT JUDGE
due and careful consideration of the procedural history of
Plaintiff's two criminal cases,  together with the
submissions of the parties,  the Court concludes that
Plaintiff's timely filed Motion to Vacate filed pursuant
to 28 U.S.C. § 2255 is due to be denied based on the
pleaded guilty in case number 8:06-cr-366 to conspiracy to
possess with intent to distribute 1, 000 kilograms or more of
marijuana pursuant to a written plea agreement. Prior to his
plea, the Government filed an information alleging two prior
felony drug convictions, thus subjecting Plaintiff to an
enhanced minimum mandatory sentence of twenty (20) years of
imprisonment under 21 U.S.C. § 851. Plaintiff's two
felony convictions consisted of possession with intent to
distribute more than five (5) pounds of marijuana in Henrico
County, Virginia, and possession of marijuana for sale in San
Diego County, California. These convictions qualified him as
a career offender pursuant to U.S.S.G. §4B1.1, thus
yielding an offense level of 37. After factoring in a
criminal history category of VI and a three-level downward
adjustment for acceptance of responsibility, Plaintiff's
advisory guideline range was fixed at 262 to 327 months.
number 8:08-cr-539, Plaintiff pleaded guilty to illegal
reentry after deportation without a plea agreement, which
subjected him to a maximum term of imprisonment of twenty
(20) years pursuant to 8 U.S.C. §§ 1326(a) and
(b)(2). The Court subsequently sentenced Plaintiff to 262
months in the drug case and 240 months in the illegal reentry
case followed by periods of supervised release, with those
sentences running concurrently. Plaintiff's direct appeal
in the drug case was dismissed for failure to pay the filing
fee, and he did not file a direct appeal in the illegal
has now filed a motion to vacate in both cases challenging
his career offender designation based on the fact that a
California superior court has reclassified his marijuana
conviction from a felony to a misdemeanor under the
provisions of Proposition 64, an initiative approved by
California voters allowing a court to redesignate a marijuana
felony conviction to a misdemeanor. See Cal. Health &
Safety Code §11361.8. In light of that
redesignation, Plaintiff contends he is no longer subject to
a sentencing enhancement under § 851 nor is he eligible
for a career offender classification, thus entitling him to
be resentenced. The Court resoundingly rejects this
on the cases cited by Defendant, as well as the Court's
own independent research, every court to consider
Plaintiff's argument has rejected it within the context
of Proposition 64. See United States v. Gilmore,
2018 WL 5787305, at *3 (N.D. Cal. 2018); Mejia v. United
States, 2018 WL 3629947, at *2 (S.D. Cal. 2018);
Ramos v. United States, 321 F.Supp.3d 661, 666 (E.D.
Va. 2018); United States v. Ochoa-Garcia, 2017 WL
4532489, at *3 (D. Nev. 2017). As the Court in
Ochoa-Garcia observed, “[a]ll the relevant
case law clearly supports the conclusion that a subsequent
state-court modification of a prior conviction cannot
retroactively change that conviction's effect under the
Sentencing Guidelines, unless the modification was due to (1)
actual innocence, or (2) legal errors in state-court
proceedings.” 2018 WL 4532489, at *3 (citing U.S.S.G.
§ 4A1.2 n. 10). As in Ochoa-Garcia, “the
classification of [Plaintiff's] conviction under
Proposition 64 did not make him innocent of his crime, and
was not the result of legal error; it merely downgraded the
offense based on recent changes in the law.”
Id. (citation omitted).
a host of courts have rejected arguments similar to
Plaintiff's within the context of California's
Proposition 47, which operates in the same fashion as
Proposition 64 with regard to reclassifying a felony to a
misdemeanor but with respect to a different set of
drug-related offenses. See, e.g., United States v.
Sanders, 909 F.3d 895, 900 (7th Cir. 2018)
(joining “the Third and Ninth Circuits in holding that
a defendant who commits a federal drug offense after
previously being convicted of a state felony drug offense is
subject to § 841's recidivist's enhancement even
if that prior offense was reclassified as a misdemeanor
pursuant to Proposition 47.”) (citing United States
v. London, 747 Fed.Appx. 80, 85 (3rd Cir.
2018) and United States v. Diaz, 838 F.3d 968, 975
(9th Cir. 2016)); United States v.
Stiger, 2019 WL 2248266, at *3 (N.D. Okla. 2019);
United States v. Mitchell, 2019 WL 2075933, at *2
(W.D. Pa. 2019) (citing London, Sanders,
and Diaz); United States v. Munayco, 2018
WL 7050761, at *3-5 (N.D. Fla. 2018) (citing London,
Sanders, and Diaz), report and
recommendation approved by district judge at docket 46 in
case number 3:05-cr-3.
light of this persuasive precedent, the Court concludes that
the mere fact that Plaintiff's California drug conviction
was reclassified from a felony to a misdemeanor based on
Proposition 64 does not remove the stigma of his career
offender designation. Accordingly, his Motion to Vacate (Dkt.
1) is denied. The Clerk is directed to enter judgment for
Defendant and to close this case.
the Court declines to issue a certificate of appealability
because Plaintiff has failed to make a substantial showing of
the denial of a constitutional right as required by 28 U.S.C.
§ 2253(c)(2). Cf. United States v. Holyfield,
752 Fed.Appx. 595 (10th Cir. 2018) (unpublished). Nor will
the Court allow Plaintiff to proceed on appeal in forma
pauperis because such an appeal would not be taken in
good faith. See 28 U.S.C. § 1915(a)(3).
Plaintiff shall pay the entire amount of the appellate filing
fee pursuant to 28 U.S.C. § 1915(b).
 See case numbers 8:06-cr-366 and
 The Court, after careful review, finds
that Defendant's citations to the record of
Plaintiff's underlying criminal cases are accurate so
that the Court need ...