Acevez Gutierrez v. USA

Filing 2

ORDER Denying Petition to Vacate under 28 USC 2255. It is ordered, Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody is denied. Additionally, the Court denies Defendant a certificate of appealability, as Defendant has not made a substantial showing that he has been denied a constitutional right. Signed by Judge Janis L. Sammartino on 6/5/2018.(All non-registered users served via U.S. Mail Service)(mpl)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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Case Nos.: 14CR0447-JLS
15CV1135-JLS

UNITED STATES OF AMERICA,
Plaintiff,

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v.

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CARLOS ACEVEZ GUTIERREZ,

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ORDER DENYING DEFENDANT’S
MOTION UNDER 28 U.S.C. § 2255 TO
VACATE, SET ASIDE OR CORRECT
SENTENCE and DENYING CERTIFICATE
OF APPEALABILITY

Defendant.

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Presently before the Court is Defendant’s Motion under 28 U.S.C. § 2255 to

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Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (ECF No. 32).

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The Court has considered Defendant’s motion and the record in this case and, for the

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reasons set forth below, will dismiss Defendant’s motion.

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Background

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Defendant Gutierrez was charged with importation of methamphetamine in

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violation of 21 U.S.C. §§ 952 and 960. ECF No. 11. On May 10, 2014, Defendant pled

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guilty to the charge pursuant to a plea agreement. ECF No. 21. On June 27, 2014,

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Defendant was sentenced to a term of 37 months’ imprisonment and a three-year term of

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14CR0447-JLS
15CV1135-JLS

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supervised release.1 The 37-month term of imprisonment incorporated a downward

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variance that was the equivalent of a two-level reduction in base offense level based upon

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Defendant’s agreement not to seek a further reduced sentence pursuant to 18 U.S.C. §

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3582(c) in the event of the anticipated 2014 amendment to the United States Sentencing

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Guideline drug quantity table.2 ECF No. 28.

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Analysis

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In the instant motion under 28 U.S.C. § 2255, Defendant contends that he is

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entitled to a 2-level sentence reduction in light of the 2014 amendment to the guideline

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drug quantity table. The record establishes, however, that Defendant’s sentence did

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encompass a two-level variance which was the equivalent of the reduction in base offense

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level Defendant would have received after the effective date of the 2014 amendment to

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the Sentencing Guidelines. Therefore, Defendant presents no valid basis to vacate, set

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aside, or correct his sentence.

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Accordingly, Defendant’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or

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Correct Sentence by a Person in Federal Custody is DENIED. Additionally, the Court

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DENIES Defendant a certificate of appealability, as Defendant has not made a substantial

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showing that he has been denied a constitutional right. See 28 U.S.C. § 2253(c)(2)

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(providing that a certificate shall issue “only if the applicant has made a substantial

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showing of a denial of a constitutional right”).

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IT IS SO ORDERED.
Dated: June 5, 2018

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According to the Federal Bureau of Prisons inmate locator website, Defendant was released from
confinement on October 12, 2016 and he presumably remains on supervised release. Thus, as collateral
consequences continue to result from the sentence imposed, the Court does not consider Defendant’s
motion to be mooted by his release from custody.
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U.S.S.G. Amendment 782 (2014).
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14CR0447-JLS
15CV1135-JLS