Rubio-Aguilar v. USA

Filing 6

ORDER, denying Movant's 1 Motion for Sentence Relief Under the Federal Nonviolent Offender Relief Act of 2003; the civil action opened in connection with this Motion is dismissed; the ClerK musT enter judgment accordinglY, re: CR 11-2405-PHX-DGC. Signed by Judge David G Campbell on 6/4/12. (REW)

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JKM

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff,

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v.

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Mauricio Rubio-Aguilar,
Defendant/Movant.

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No. CV 12-0690-PHX-DGC (LOA)
No. CR 11-2405-PHX-DGC
ORDER

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Before the Court is Movant Mauricio Rubio-Aguilar’s pro se Motion for Sentence

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Relief Under the Federal Nonviolent Offender Relief Act of 2003. The Court will deny the

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motion.

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This matter has been opened as a motion to vacate sentence under 28 U.S.C. § 2255.

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However, Movant’s motion does not refer to § 2255. Nor does he refer to any other

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jurisdictional basis for his motion. Although the Court may construe a pro se motion as a

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§ 2255 motion, it may not do so without first giving certain warnings to the movant. In

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Castro v. United States, 540 U.S. 375, 377 (2003), the Supreme Court held that a district

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court may not recharacterize a motion as a defendant’s first § 2255 motion without first

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warning him that the recharacterization will subject subsequent § 2255 motions to the law’s

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“second or successive” restrictions and allowing him an opportunity to withdraw or to amend

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the motion. But even if the Court had provided Movant with the requisite Castro warning,

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it would not recharacterize this matter as a motion brought under § 2255 because his claim

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for relief is frivolous.

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In his motion, Movant seeks relief under a bill (the Federal Bureau of Prisons

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Nonviolent Offender Relief Act of 2003, H.R. 3575, 108th Cong. (2003)) introduced in

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Congress to amend 18 U.S.C. § 3624. That bill was never enacted. Accordingly, Movant’s

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motion has no arguable basis in fact or in law.

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IT IS ORDERED that Movant’s Motion for Sentence Relief Under the Federal

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Nonviolent Offender Relief Act of 2003 (Doc. 25 in CR 11-2405-PHX-DGC) is denied and

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that the civil action opened in connection with this Motion (CV 12-0690-PHX-DGC (LOA))

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is dismissed. The Clerk of Court must enter judgment accordingly.

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DATED this 4th day of June, 2012.

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