Sanchez v. USA

Filing 5

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED: The Government's Motion to Dismiss 3 is GRANTED as the motion is untimely and is not impacted by the Johnson decision. Petitioner's § 2255 Motion to Vacate, Correct, or Set Aside his Sentence 1 (CR Dkt. 144) is DENIED and the civil case is DISMISSED IN ITS ENTIRETY. Certificate of Appealability is DENIED. Signed by Judge Edward J. Lodge. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (st)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

RIGABERTO MORENO SANCHEZ,

Case No. 1:16-CV-00288-EJL
1:11-CR-0004-EJL

Petitioner,
MEMORANDUM DECISION
AND ORDER

v.
UNITED STATES OF AMERICA,
Respondent.

INTRODUCTION
Before the Court in the above-entitled matter are Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (CV Dkt. 1, CR144) and the
Government Motion to Dismiss (CV Dkt. 3). Petitioner did not file a response to the
Government’s Motion to Dismiss which was filed on August 4, 2016.
Because it is clear that Petitioner has failed to state a claim, or has “no more than
conclusory allegations, unsupported by facts and refuted by the record,” this Court denies
the § 2255 Motion without an evidentiary hearing. United States v. Quan, 789 F.2d 711,
715 (9th Cir. 1986).
BACKGROUND
On June 27, 2011, Petitioner Rigaberto Moreno Sanchez pled guilty to Count One
of the Indictment charging Conspiracy to Distribute 500 grams or more of

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methamphetamine. (CR Dkt. 74.) Sanchez was originally sentenced to 168 months
imprisonment, 5 years of supervised release, $100 special assessment and 200 hours of
community service in lieu of a fine. (CR Dkt. 93.) No appeal was filed by Sanchez. On
October 19, 2015, Sanchez’s sentence was reduced to 135 months based on a retroactive
change to the drug offense level calculations. (CR Dkt. 139.)
On June 27, 2016, Sanchez filed his § 2255 motion. Sanchez’s sentence was based
on a two level specific offense characteristic enhancement pursuant to § 2D1.1.(b)(1) for
possessing a firearm. Sanchez argues that based on the Supreme Court’s decision in
Johnson v. United States, 135 S.Ct. 2251 (2015) that by analogy his firearm enhancement
should be determined to be unconstitutional. The Government disagrees that Johnson,
even if applied to the Sentencing Guidelines, applies to the firearm enhancement since
the firearm enhancement does not involve the application of the residual clause addressed
in Johnson.

DISCUSSION
1.

Timeliness of the § 2255 Motion
While not raised by the Government, the Court finds the motion is not timely filed.

As discussed below, the Court does not find Johnson applies to the facts of this case.
Therefore, Sanchez cannot rely on 28 USC § 2255(f)(3) to extend the statute of
limitations to one year after the Johnson decision was rendered. Instead, the Court must
apply § 2255(f)((1) which requires the motion to be filed one year from the date on which
the judgement of conviction became final. Sanchez’s original Judgement was entered on
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February 22, 2012. (CR Dkt. 123.) Since he did not file a direct appeal, Sanchez had one
year plus the fourteen (14 days) he had to file an appeal to file his § 2255 motion based
on the firearm enhancement being unconstitutional. He did not file his motion until June
of 2016, so the motion is untimely. The Order reducing his sentence issued for the
retroactive reduction in his sentence did not restart the § 2255 deadline. Therefore, this
motion is untimely. In the interests of justice, the Court will briefly discuss the merits of
the Government’s Motion to Dismiss.

2.

Motion to Dismiss
The Supreme Court in Johnson held that the residual clause of the Armed Career

Criminal Act (ACCA), 18 U.S.C. § 924(e)(1), which imposes a minimum 15 year
sentence for individuals who had three or more prior convictions for a “violent felony,”
to be unconstitutionally vague and violated due process. See Johnson, 135 S.Ct. at 255760. The “residual clause” defined “violent felony” to include a felony that “involves
conduct that presents a serious potential physical risk of physical injury to another.” See
id.
In this case, the Court applied a two level enhancement to Sanchez’s sentence
pursuant to Sentencing Guideline § 2D1.1(b)(1) which provides that if “a dangerous
weapon (including a firearm) was possessed, increase by 2 levels.” (Presentence
Investigation Report, ¶¶ 18 and 41. (Petitioner has access to review his Presentence
Investigation Report through his Case Manager with the Bureau of Prisons.) The Johnson
decision does not apply to the enhancement under § 2D1.1(b)(1) or to Sanchez’s
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sentencing. Barajas v. United States, 2016 WL 4721481, at *2 (E.D. Cal. Sept. 8, 2016)
(citing cases). For these reasons, the Government’s Motion to Dismiss will be granted on
the merits.

3. Certificate of Appealability
Further, the Court denies issuance of a certificate of appealability (COA). “The
district court must issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11(a), Rules Governing § 2255 Proceedings. A COA
should issue as to those claims on which the petitioner makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The standard is satisfied if
“jurists of reason could disagree with the district court's resolution of [the] constitutional
claims” or “conclude the issues presented are adequate to deserve encouragement to
proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). Here, Sanchez has not shown the deprivation of
any constitutional right as no reasonable jurist would disagree that Johnson does not
apply to this case and no reasonable jurist would find debatable the untimeliness of the
second § 2255 Motion.
ORDER
IT IS HEREBY ORDERED:
1.

The Government’s Motion to Dismiss (CV Dkt. 3) is GRANTED as the
motion is untimely and is not impacted by the Johnson decision.

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2.

Petitioner’s § 2255 Motion to Vacate, Correct, or Set Aside his Sentence
(CR Dkt. 144) (CV Dkt. 1) is DENIED and the civil case is DISMISSED
IN ITS ENTIRETY.

3..

Certificate of Appealability is DENIED.

DATED: October 27, 2016

_________________________
Edward J. Lodge
United States District Judge

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