United States of America v. Ozuna

Filing 12

MEMORANDUM Opinion and Order Signed by the Honorable John W. Darrah on 2/15/2017. Mailed notice (cc, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
v.
MODESTO OZUNA,
Defendant.

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Case No. 16-cv-9822
Judge John W. Darrah

MEMORANDUM OPINION AND ORDER
Petitioner Modesto Ozuna filed a pro se Motion to Vacate, Set Aside, or Correct [1] his
sentence pursuant to 28 U.S.C. § 2255. For the reasons provided below, this Motion [1] is
denied.
BACKGROUND
On September 17, 2003, Petitioner was charged by superseding indictment with
knowingly and intentionally possessing with intent to distribute in excess of 5 kilograms of
cocaine, in violation of 21 U.S.C. § 841(a)(1). On November 9, 2006, following a jury trial,
Petitioner was convicted. At Petitioner’s sentencing hearing, his adjusted offense level was 42
with a criminal history level of II. The applicable guideline calculation suggested a guideline
range of 360 months to life. On June 27, 2007, Petitioner was sentenced to a term of 300
months’ imprisonment. Petitioner appealed his conviction on June 14, 2007. On April 30, 2009,
the Seventh Circuit affirmed Petitioner’s conviction.
On January 27, 2015, Petitioner filed a motion to reduce his sentence pursuant to
18 U.S.C. § 3582(c)(2) based upon Amendment 782 to the Sentencing Guidelines. Petitioner’s
motion was denied because he was sentenced to a term below the amended guideline range. On

June 29, 2015, Petitioner filed another motion to reduce his sentence pursuant to 18 U.S.C.
§ 3582(c)(2), challenging his criminal history category. On February 4, 2016, Petitioner’s
second motion was denied because Amendment 782 did not affect his criminal history category,
therefore, a reconsideration of that issue was not authorized by section 3582.
Petitioner filed this Motion to Vacate [1] on October 11, 2016. Petitioner alleges that he
is entitled to be resentenced as a “minor” participant under Amendment 794 to the U.S.
Sentencing Guidelines.1
LEGAL STANDARD
Petitioner’s pro se petition is construed liberally. Ward v. Jenkins, 613 F.3d 692, 700
(7th Cir. 2010). A prisoner convicted of a federal crime may move the district court that
imposed the sentence to vacate, set aside, or correct the sentence. 28 U.S.C. § 2255. A
petitioner must show that “the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack.” 28 U.S.C. § 2255(a). Relief is only available in cases where jurisdictional or
constitutional errors have caused a “complete miscarriage of justice.” Harris v. U.S., 366 F.3d
593, 594 (7th Cir. 2004) (quoting Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991)).
This is an “extraordinary remedy because it asks the district court essentially to reopen the
criminal process to a person who already has had an opportunity for full process.” Almonacid v.
U.S., 476 F.3d 518, 521 (7th Cir. 2007).
Petitioner also requested that the Seventh Circuit “reopen sentencing proceedings in
light of Amendment 794, and recall the mandate.” (Dkt. 1 at 7.) Petitioner’s request is denied
for lack of jurisdiction.
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ANALYSIS
Errors in the application of the sentencing guidelines cannot be raised in 2255 motions as
long as a defendant's sentence is within the range provided by the statute for the offense.
United States v. Wisch, 275 F.3d 620, 625 (7th Cir. 2001) (holding that sentencing guideline
calculation errors are not constitutional and are therefore not reviewable in 2255 proceedings).
Petitioner was sentenced to a term below the guideline range for his offense. Petitioner makes
no argument that the sentencing guideline and commentary in effect at the time he was sentenced
were not applied correctly. Petitioner instead argues that he is entitled to an application of both
Amendment 794 and Amendment 782, and that after adjustments from both of those
amendments, his amended sentencing guideline range would be 262 months to 327 months of
imprisonment. Petitioner asserts that because he was not sentenced under the correct sentencing
guideline range, he was improperly sentenced in violation of his constitutional rights.
While the Court may modify a term of imprisonment when the guidelines governing the
sentence are subsequently lowered by the Sentencing Commission, Amendment 794 to the
Sentencing Guidelines does not lower a sentencing range. Amendment 794 modified the
commentary to Sentencing Guideline § 3B1.2 to provide additional guidance in its application.
Further, Petitioner was sentenced in 2007, well before Amendment 794 became effective on
November 1, 2015. Sentencing Guideline 1B.10 lists all amendments eligible for retroactive
effect, and Amendment 794 is not listed. 18 U.S.C. § 3582(c)(2); USSG § 1B.10. Thus,
Amendment 794 is inapplicable here. Petitioner is not entitled to the cumulative effect of the
application of Amendment 794 and Amendment 782.

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Petitioner cites to United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), to
support his contention that Amendment 794 is retroactively applicable to his case. However, in
Quintero-Leyva, the Ninth Circuit held that Amendment 794 applied retroactively to a case on
direct appeal, not that it applied retroactively on collateral review after a conviction has become
final.
Certificate of Appealability
A district court must issue or deny a certificate of appealability when it enters a final
order adverse to the applicant on a habeas petition. A certificate of appealability “may issue . . .
only if the applicant has made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Petitioner has not made a substantial showing of the denial of a
constitutional right; and, accordingly, a certificate of appealability shall not issue. Petitioner may
seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.
CONCLUSION
For the reasons discussed above, Petitioner’s Motion to Vacate, Set Aside, or Correct
Sentence [1] is denied. No certificate of appealability shall issue.

Date:

February 15, 2017

/s/
John W. Darrah
U.S. District Court Judge

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