Osuna v. United States of America

Filing 2

ORDER denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (CR12-4088-LTS). A certificate of appealability will not issue. Signed by Judge Leonard T Strand on 8/31/16. (copy w/nef mailed to pro se petitioner) (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION

FLOR OSUNA,
Movant,

No. C16-4113-LTS
No. CR12-4088-LTS

vs.
ORDER

UNITED STATES OF AMERICA.

____________________________
This matter appears before the court on Flor Osuna’s motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1). Flor Osuna (“the movant”)
filed such motion on August 26, 2016.
Because judgment entered against the movant on July 22, 2013 and the movant did
not pursue appellate relief, any action attacking her sentence is barred by the one-year
statute of limitation. The movant’s conviction became final in 2013, and she only sought
relief in 2016, which is well beyond the applicable time frame as set forth in 28 U.S.C.
§ 2255(f)(1). Further, the movant cites to Amendment 794, but 18 U.S.C. § 3582(c)(2),
not 28 U.S.C. § 2255, governs when an amendment to the United States Sentencing
Guidelines can be applied retroactively.

Hence, the court is unable to consider

Amendment 794, which took effect on November 1, 2015, in an action under 28 U.S.C.
§ 2255.
With respect to 18 U.S.C. § 3582(c)(2), it provides:
The court may not modify a term of imprisonment once it has
been imposed except that . . . in the case of a defendant who
has been sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered by the
Sentencing Commission pursuant to 28 U.S.C. [§] 994(o),

upon motion of the defendant or the Director of the Bureau of
Prisons, or on its own motion, the court may reduce the term
of imprisonment, after considering the factors set forth in [18
U.S.C. §] 3553(a) to the extent that they are applicable, if such
a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2); see also United States v. Auman, 8 F.3d 1268, 1271 (8th Cir.
1993) (“Section 3582(c)(2) is a provision that permits a district court to reduce a term of
imprisonment if the sentencing range upon which the term was based is subsequently
lowered by the Sentencing Commission.”). In addition, USSG §1B1.10, in relevant part,
states:
In a case in which a defendant is serving a term of
imprisonment, and the guideline range applicable to that
defendant has subsequently been lowered as a result of an
amendment to the Guidelines Manual listed in subsection (d)
below, the court may reduce the defendant’s term of
imprisonment as provided by 18 U.S.C. § 3582(c)(2). As
required by 18 U.S.C. § 3582(c)(2), any such reduction in the
defendant’s term of imprisonment shall be consistent with this
policy statement.
USSG §1B1.10(a)(1); see also USSG §1B1.10, comment. (n.1) (“Eligibility for
consideration under 18 U.S.C. § 3582(c)(2) is triggered only by an amendment listed in
subsection (c) that lowers the applicable guideline range.”). Amendment 794 is not an
amendment that is included within USSG §1B1.10(c). Thus, the court is unable to rely on
18 U.S.C. § 3582(c)(2) to reduce the movant’s setence.
Based on the foregoing, the movant’s motion to vacate, set aside or correct sentence
pursuant to 28 U.S.C. § 2255 is denied. As for a certificate of appealability, the movant
has not made the requisite showing with respect to the claim that she raised. See 28

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U.S.C. § 2253(c)(2). Accordingly, a certificate of appealability under 28 U.S.C. § 2253
will not issue.
IT IS SO ORDERED.
DATED this 31st day of August, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

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