Abrego v. USA

Filing 4

ORDER DENYING PETITIONER MAINOR ANTONIO ABREGO'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (ECF NO. 141) re 1 - Signed by JUDGE HELEN GILLMOR on 11/15/2016. "Petitioner Maino r Antonio Abrego's Motion to Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF No. 141) is DENIED. Petitioner is not entitled to an evidentiary hearing. Petitioner is not entitled to a Certificate o f Appealability. This case is now CLOSED." (CR 13-00765 HG-01; CV 16-00454 HG-KSC) (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Mainor Antonio Abrego served by first class mail at the address of record on November 15, 2016.

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

MAINOR ANTONIO ABREGO
Petitioner,
vs.
UNITED STATES OF AMERICA,

Respondent.

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Criminal No. 13-00765 HG-01
Civil No. 16-00454 HG-KSC

ORDER DENYING PETITIONER MAINOR ANTONIO ABREGO’S MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. §
2255 (ECF NO. 141)

Petitioner Mainor Antonio Abrego has filed a Motion to
Vacate, Set Aside or Correct Sentence Pursuant to 28 U.S.C. §
2255.

Petitioner challenges his sentence, claiming that he is

entitled to a sentence reduction pursuant to Amendment 782 of
the United States Sentencing Guidelines.
Petitioner’s Section 2255 Motion (ECF No. 141) is DENIED.

PROCEDURAL HISTORY
On August 1, 2013, the grand jury returned a four-count
Indictment charging Petitioner Mainor Antonio Abrego
1

(“Petitioner”) as follows:
Count 1 for conspiracy to knowingly and intentionally
distribute and possess with the intent to distribute fifty
grams or more of methamphetamine in violation of 21 U.S.C. §§
841(a)(1), (b)(1)(A) and 846;
Count 2 for distributing fifty grams or more of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A);
Count 3 for distributing fifty grams or more of
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(A); and
Count 4 for possession with the intent to distribute
fifty grams or more of methamphetamine in violation of 21
U.S.C. §§ 841(a)(1), (b)(1)(A) and 18 U.S.C. § 2.

(ECF No.

10).
On February 5, 2014, Petitioner pled guilty to Count 1 in
the Indictment pursuant to a Plea Agreement.

(ECF Nos. 40;

42).
On December 4, 2014, Petitioner was sentenced to 60
months imprisonment as to Count 1 in the Indictment.
78).

(ECF No.

The Court granted the Government’s motion to dismiss

Counts 2, 3, and 4 of the Indictment.

The Court also found

that Petitioner qualified for the safety valve provision
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pursuant to U.S.S.G. § 5C1.2.

(Id.)

On December 10, 2014, Judgment was entered as to
Petitioner.

(ECF No. 81).

Petitioner did not appeal his

conviction or sentence.
On August 11, 2016, Petitioner filed a NOTION (sic) TO
VACATE[,] SET ASIDE OR CORRECT A SENTENCE BY PERSON IN FEDERAL
CUSTODY UNDER 28 U.S.C. § 2255.

(ECF No. 141).

On August 17, 2016, the Government filed UNITED STATES’
MEMORANDUM IN OPPOSITION TO PETITION OF MAINOR ANTONIO ABREGO
UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE OR CORRECT
SENTENCE BY A PERSON IN FEDERAL CUSTODY.

(ECF No. 145).

Petitioner did not file a Reply to the Government’s
Opposition.

STANDARD OF REVIEW
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2255, provides federal prisoners with a
right of action to challenge a sentence if it was imposed in
violation of the Constitution or laws of the United States,
the court was without jurisdiction to impose such a sentence,
the sentence was in excess of the maximum authorized by law,
or the sentence is otherwise subject to collateral attack.
U.S.C. § 2255(a).

A prisoner may file a motion (“2255
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Motion”) to vacate, set aside, or correct a sentence.

28

U.S.C. § 2255.
The scope of collateral attack of a sentence is limited,
and does not encompass all claimed errors in conviction and
sentencing.

ANALYSIS
Petitioner Mainor Antonio Abrego (“Petitioner”) has filed
a Motion to Vacate, Set Aside or Correct Sentence Pursuant to
28 U.S.C. § 2255 (ECF No. 141).

Petitioner challenges his

sentence of 60 months imprisonment, claiming that he is
entitled to a sentence reduction pursuant to Amendment 782 of
the United States Sentencing Guidelines.
I. Petitioner’s Section 2255 Motion is Untimely
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”), 28 U.S.C. § 2255,1 provides a one-year limitation
period for filing a petition for habeas corpus relief
(“Section 2255 Motion”).

The limitation period for a Section

2255 Motion runs from the date on which a judgment of
conviction becomes final, unless an alternative start date is

1

The AEDPA is codified as 28 U.S.C. §§ 2241 through 2255
and 28 U.S.C. §§ 2261 through 2266. Habeas relief sought by
federal prisoners is governed by 28 U.S.C. § 2255.
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established by a condition set forth in the statute.

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U.S.C. § 2255(f).
On December 10, 2014, Judgment was entered as to
Petitioner.

(ECF No. 81).

Petitioner did not file an appeal.

On December 24, 2014, fourteen days after Judgment was
entered, Petitioner’s conviction became final.

Fed. R. App.

Proc. 4(b); Gonzalez v. Thaler, 132 S.Ct. 641, 653 (2012);
Moshier v. United States, 402 F.3d 116, 118 (2d Cir. 2005).
Absent some alternative start date, Petitioner’s time for
filing a Section 2255 Motion expired on or about December 24,
2015.

Petitioner filed his Section 2255 Motion on August 11,

2016, approximately 20 months after the date when his judgment
became final.

(ECF No. 141).

There is no indication Petitioner’s Section 2255 Motion
is subject to an alternative start date, nor has he shown that
he is entitled to equitable tolling of the AEDPA’s one-year
statute of limitation.

See United States v. Buckles, 647 F.3d

883, 889 (9th Cir. 2011) (describing equitable tolling as to
the AEDPA).

Petitioner’s Section 2255 Motion is untimely, and

may not be granted relief.

28 U.S.C. § 2255(f).

In the

interests of thoroughness and finality, however, the Court
addresses Petitioner’s claim that his sentence should be
reduced pursuant to Amendment 782 to the United States

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Sentencing Guidelines.
II.

Amendment 782 to the United States Sentencing Guidelines
was Already Applied to Calculate Petitioner’s Sentencing
Guidelines at His December 4, 2014 Sentencing
Petitioner requests a reduction in his sentence pursuant

to Amendment 782 to the United States Sentencing Guidelines.
On November 1, 2014, Amendment 782 to the United States
Sentencing Guidelines became effective.

Amendment 782 reduced

by two levels some, but not all, of the base offense levels in
the Drug Quantity Tables at U.S.S.G. §§ 2D1.1 and 2D1.11.
Amendment 782 to the United States Sentencing Guidelines
was in effect at the time of Petitioner’s sentencing on
December 4, 2014.

Amendment 782 was incorporated into the

2014 United States Sentencing Guidelines.
Petitioner’s Presentence Investigation Report states that
“[t]he 2014 Guidelines Manual, incorporating all guideline
amendments, was used to determine the defendant's offense
level, as this guideline manual is more advantageous to the
defendant.”
ECF No. 79).

(Presentence Investigation Report at ¶ 21, p. 7,
An addendum to the Presentence Investigation

Report specifically provides that the Presentence
Investigation Report incorporated “the two-level decrease
attributable to Amendment 782 of USSG § 2D1.1, which became
effective on 11/01/2014.

In addition, the Recommendation has
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been amended.”

(Id. at p. 15) (emphasis added).

At

Petitioner’s sentencing hearing, the Court adopted the factual
findings and conclusions as to the applicable guidelines of
the Presentence Investigation Report.

(Sentencing Hearing

Transcript at p. 3, ECF No. 116).
The record establishes that Amendment 782 was applied to
Petitioner at sentencing.
reduction in sentence.

Petitioner is ineligible for a

See 18 U.S.C. § 3582(c)(2);

U.S.S.G.

§ 1B1.10(a)(2)(B).

III. Petitioner is Not Entitled to an Evidentiary Hearing
An evidentiary hearing in a Section 2255 action is
required “[u]nless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no
relief.”

28 U.S.C. § 2255(b).

An evidentiary hearing is not required, however, if a
prisoner’s allegations, “when viewed against the record, do
not state a claim for relief or are so palpably incredible or
patently frivolous as to warrant summary dismissal.”

United

States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting
United States v. Schaflander, 743 F.2d 714, 717 (9th Cir.
1984)).
Petitioner’s claim does not provide grounds for relief.

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Petitioner is not entitled to an evidentiary hearing.

IV.

Petitioner is Not Entitled to a Certificate of
Appealability
The AEDPA provides that a Certificate of Appealability

may be issued “only if the applicant has made a substantial
showing of the denial of a constitutional right.”
2253(c)(2).

28 U.S.C. §

A “substantial” showing requires a prisoner to

show that “reasonable jurists could debate whether . . . the
petition should have been resolved in a different manner or
that the issues presented were adequate to deserve
encouragement to proceed further.”

Slack v. McDaniel, 529

U.S. 473, 483–84 (2000)(quoting Barefoot v. Estelle, 463 U.S.
880, 893, n. 4 (1983)).
Petitioner’s Section 2255 Motion has not made a
substantial showing that Petitioner was deprived of a
constitutional right. Petitioner’s arguments are not supported
by the record and applicable law.

Reasonable jurists would

not debate the Court’s conclusion, and there is no reason to
encourage further proceedings.
Petitioner is not entitled to a Certificate of
Appealability.

CONCLUSION
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Petitioner Mainor Antonio Abrego’s Motion to Vacate, Set
Aside or Correct Sentence Pursuant to 28 U.S.C. § 2255 (ECF
No. 141) is DENIED.
Petitioner is not entitled to an evidentiary hearing.
Petitioner is not entitled to a Certificate of
Appealability.
This case is now CLOSED.
IT IS SO ORDERED.
DATED: November 15, 2016, Honolulu, Hawaii.

___________________________________
Helen Gillmor
United States District Judge

Mainor Antonio Abrego v. United States of America; Cr. No. 1300765-HG-01; Cv. No. 16-00454-HG-KSC; ORDER DENYING PETITIONER
MAINOR ANTONIO ABREGO’S MOTION TO VACATE, SET ASIDE OR CORRECT
SENTENCE PURSUANT TO 28 U.S.C. § 2255 (ECF NO. 141)
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