United States of America v. Gutierrez-Ceja

Filing 11

MEMORANDUM Opinion and Order Signed by the Honorable James B. Zagel on 5/17/2016. Mailed notice (ao,)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
No. 15 C 10579
Judge James B. Zagel

v.
SANTIAGO GUTIERREZ-CEJA.

MEMORANDUM OPINION AND ORDER
Defendant Santiago Gutierrez-Ceja pled guilty to illegal reentry into the United States.
His Guideline sentence imposed by the Court was calculated on the basis of his illegal reentry
and his prior felony conviction for possession with intent to distribute 22.6 kilograms of
marijuana. Defendant sought appeal after his sentence, and he was given court-appointed counsel
who filed an Anders brief. This led to the dismissal of his appeal, and Defendant did not seek
further review.
About six months later, Defendant sought relief under a § 2255 motion. The § 2255
motion was of a familiar nature. The claim was that appellate counsel was inadequate in his
performance on Defendant’s appeal.
I set a schedule for Defendant to brief his claim, and in October 2014, I told the
government to respond. Defendant was ordered to reply to the government’s pleading. No reply
was filed. But, two months after the due date for Defendant’s reply, he filed a new motion
seeking a sentence reduction. This reduction had nothing to do with the issues on appeal or, for
that matter, the issues raised in his § 2255 motion.
What Defendant desired was a sentence reduction under Sentencing Guidelines 782
which provides the authority of judges to reduce a sentence, but that reduction can only be made
in drug offenses. This argument was pointless because a 782 reduction cannot apply here.

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Defendant was not convicted of a drug offense in this case; he was convicted of illegal reentry
into the United States. The law which created Guideline 782 did permit limited retroactive
changes in drug offenses but not in illegal reentry offenses by deported aliens. The original
§ 2255 claim was not ruled upon because it was not pursued. In my view, the first Santiago claim
was simply abandoned for what appeared to be a better argument from his point of view. He
refused my instruction to file a reply to support his claim. A § 2255 motion can proceed with
more than one claim in the prisoner’s rucksack but, to be effective, it has to be used and not
simply thrown away. By the time of today’s reliance on Johnson v. United States, 135 S.Ct. 2551
(2015), I find that the current materials are second or subsequent.
What was pursued was the request for a 782 sentence reduction, and that was denied in
September, 2015 and closed. In any event, Defendant sought reduction of sentence and his claim
was rejected.
The next act of Defendant was a new § 2255 motion in November, 2015. The difficulty
for Defendant arises from a new § 2255 motion which was filed without authorization from the
Court of Appeals. Authorization is required for filing of a second or successive application for
relief. He does refer to some elements of his 2012 sentencing memorandum, but he does not
mention the abandoning of his prior claims nor does he claim that this latest move is not a second
or successive § 2255 motion. What is evident is that authorization of the Seventh Circuit for a
second or subsequent authorization was not attempted.
In closing, I note later motions in November 2015 were offered too late in the process. I
note also that Johnson v. United States is correctly analyzed and applied in the Government's
response.

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There is no constitutional error in the proceeding which led to the resolution for this case
in both the District Court and the Court of Appeals. The motions of Santiago Gutierrez-Ceja are
denied because the relief sought by Defendant is not warranted on this record.
ENTER:

James B. Zagel
United States District Judge
DATE: May 17, 2016

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