USA v. Saul Gastelum-Lara

Filing

Per Curiam OPINION filed : The appeal in No. 11-3616, construed as a request for authorization to file a second or successive section 2255 motion is DENIED. Gastelum-Lara's same motion in No. 11-4214 is also denied. We AFFIRMED the dismissal order in the lead case; granting motion to proceed ifp [4419639-2] filed by Saul Gastelum-Lara in 11-3616, decision not for publication pursuant to local rule 206. Boyce F. Martin , Jr., Circuit Judge; Eric L. Clay, Circuit Judge and Joseph M. Hood, U.S. District Judge for the Eastern District of Kentucky. [11-3616, 11-4214]

Case: 11-3616

Document: 006111291145

Filed: 05/01/2012

Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a0458n.06
Nos. 11-3616/11-4214

FILED

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

May 01, 2012

UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
SAUL GASTELUM-LARA,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)

LEONARD GREEN, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE NORTHERN DISTRICT OF
OHIO

Before: MARTIN and CLAY, Circuit Judges; HOOD, District Judge.*

PER CURIAM. In these consolidated cases, Saul Gastelum-Lara, a pro se federal prisoner,
appeals the district court’s denial of a motion construed as one to vacate his sentence filed under 28
U.S.C. § 2255 (No. 11-3616). He moves for leave to proceed in forma pauperis in this appeal. In
No. 11-4214, Gastelum-Lara moves for leave to file a second or successive section 2255 motion
pursuant to 28 U.S.C. § 2244.
In 2003, Gastelum-Lara pled guilty to conspiracy to possess with intent to distribute more
than 500 grams of cocaine, in violation of 21 U.S.C. §§ 841 and 846. The district court sentenced
Gastelum-Lara to 188 months of imprisonment. He did not appeal the district court’s judgment.
In 2005, Gastelum-Lara filed a motion to vacate his sentence under section 2255 arguing that
his attorney was ineffective for failing to file a direct appeal. The district court dismissed the motion

*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.

Case: 11-3616

Document: 006111291145

Filed: 05/01/2012

Page: 2

Nos. 11-3616/11-4214
-2as untimely. Although Gastelum-Lara appealed the district court’s decision, we dismissed the appeal
for want of prosecution.
In May 2011, Gastelum-Lara filed a motion to dismiss the indictment, arguing that pursuant
to Apprendi v. New Jersey, 530 U.S. 466 (2000), the indictment was defective. The district court
denied the motion on several grounds, one of which was Gastelum-Lara’s failure to seek permission
from this Court to file a second or successive section 2255 motion. Gastelum-Lara appeals the
district court’s decision in No. 11-3616.
The first issue is whether the district court properly construed Gastelum-Lara’s motion to
dismiss as a second or successive section 2255 motion. Gastelum-Lara’s motion presented a new
ground for relief—a violation of Apprendi. Therefore, the district court properly construed the
motion as a second or successive section 2255 motion. See Gonzalez v. Crosby, 545 U.S. 524,
531–32 (2005).
Although the district court correctly concluded that the motion was a second or successive
section 2255 motion, the district court improperly denied the motion rather than transferring it to this
Court for preauthorization as required by In re Sims, 111 F.3d 45, 47 (6th Cir. 1997). Thus, we will
treat the appeal as a request for an authorization to file a second or successive section 2255 motion.
Gastelum-Lara expressly moves us for leave to file a second or successive section 2255 motion in
No. 11-4214, again arguing that his indictment was defective.
We will certify a second or successive section 2255 motion only if the motion relies on:
(1) newly discovered evidence that, if proven and viewed in the light of the evidence
as a whole, would be sufficient to establish by clear and convincing evidence that no
reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable.

Case: 11-3616

Document: 006111291145

Filed: 05/01/2012

Page: 3

Nos. 11-3616/11-4214
-328 U.S.C. § 2255(h); In re Green, 144 F.3d 384, 388 (6th Cir. 1998).
Gastelum-Lara cites Apprendi, which held that any fact that increases the penalty for a crime
beyond the statutory maximum—other than the fact of a prior conviction—must be submitted to
ajury and proven beyond a reasonable doubt. 530 U.S. at 490. Gastelum-Lara argues that the drug
quantity statute, 21 U.S.C. § 841(a), is unconstitutional in light of Apprendi because Congress
intended that drug quantity be a sentencing factor, whereas Apprendi—in his view —requires that
drug quantity be submitted to a jury and proven beyond a reasonable doubt. He also argues that the
indictment was defective because it did not indicate the type or quantity of drug with which he was
charged. These arguments do not rely on newly discovered evidence. Nor do they rely on a new,
retroactive rule of constitutional law that was previously unavailable. Apprendi was decided more
than two years before Gastelurn-Lara pleaded guilty. The case was therefore available to him during
the trial court proceedings and when he filed his initial § 2255 motion. Even if Apprendi had been
published after Gastelum-Lara was convicted, the case would be of no avail, because it does not
apply retroactively to cases on collateral review. In re Clemmons, 259 F.3d 489, 493 (6th Cir. 2001).
We affirm the district court’s dismissal on a different ground than the district court chose, which we
may do when our chosen basis for affirmance is supported by the record as a whole. See Blount-Hill
v. Zelman, 636 F.3d 278, 284 (6th Cir. 2011).
Therefore, the appeal in No. 11-3616, construed as a request for authorization to file a second
or successive section 2255 motion is denied. Gastelum-Lara’s same motion in No. 11-4214 is also
denied. We affirm the dismissal order in the lead case. Finally, the motion for leave to proceed in
forma pauperis is granted.