Velasquez v. USA

Filing 2

ORDER denying 1 Motion to Vacate. Signed by Judge Larry R. Hicks on 3/5/14. (Copies have been distributed pursuant to the NEF - JC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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UNITED STATES OF AMERICA,

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Plaintiff,

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v.

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PEDRO VELASQUEZ,

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Defendant.

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3:08-CR-00017-LRH-RAM
ORDER

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Before the Court is Defendant Pedro Velasquez’s (“Velasquez”) Motion to Vacate, Set

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Aside, Correct, or Amend Sentence by a Federal Prisoner Pursuant to 28 U.S.C. § 2255.

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Doc. #139.1 The United States filed a Response (Doc. #141), to which Velasquez did not reply.

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Thereafter, the United States filed a Notice of Supplemental Authority (Doc. #142), to which

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Velasquez did not reply.

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I.

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Factual Background
Following a jury trial, Velasquez was convicted of possessing with the intent to distribute

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approximately 126 grams of a mixture or substance containing heroin in violation of 21 U.S.C.

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§§ 841(a)(1), (b)(1)(B)(i), and 18 U.S.C. § 2; and possessing with the intent to distribute

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approximately 236 grams of a mixture or substance containing cocaine base in violation of

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21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), and 18 U.S.C. § 2. Doc. #20; Doc. #85. On May 26, 2009,

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Refers to the Court’s docket number.

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the Court sentenced Velasquez to ten years’ imprisonment, the statutory minimum sentence for

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cocaine base offenses. Doc. #105. Velasquez appealed, and on April 30, 2010, the Ninth Circuit

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Court of Appeals affirmed his conviction and sentence in an unpublished opinion. United States v.

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Cruz-Castro et al., 378 Fed. Appx. 632 (9th Cir. 2010). On October 4, 2010, the Supreme Court of

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the United States denied Velasquez’s petition for a writ of certiorari. Doc. #129. On January 2,

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2013, Velasquez, acting pro se, filed the instant Motion before the Court. Doc. #139. Pursuant to

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the Court’s January 10, 2013 Order (Doc. #140), the United States filed a Response on January 31,

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2013. Doc. #141. On April 4, 2013, the United States filed a Notice of Supplemental Authority.

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Doc. #142.

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II.

Discussion
Pursuant to 28 U.S.C. § 2255, a prisoner may move the court to vacate, set aside, correct, or

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amend a sentence if “the sentence was imposed in violation of the Constitution or laws of the

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United States, or . . . the court was without jurisdiction to impose such sentence, or . . . the

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sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral

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attack.” 28 U.S.C. § 2255; 2 Randy Hertz & James S. Liebman, Federal Habeas Corpus Practice

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and Procedure § 41.3b (5th ed. 2005). In his Motion, Velasquez asserts that the Court should

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vacate his sentence because, although the statutory minimum sentence for his offense of conviction

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was ten years imprisonment when he was sentenced, the Fair Sentencing Act (“FSA”), which took

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effect on August 3, 2010, lowered that statutory minimum sentence to five years imprisonment.

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See Doc. #139, p. 5. The Court, therefore, “might have imposed a lower sentence if the [five]-year

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new mandatory minimum would have applied at [his] sentencing.” Id.

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Velasquez does not dispute that the one-year limitation period within which to file a motion

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pursuant to 28 U.S.C. § 2255 expired on October 4, 2011. Doc. #139, p. 2. Instead, Velasquez

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argues that his Motion is timely because the one-year limitation period specified in 28 U.S.C.

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§ 2255(f) did not begin to run until the Supreme Court announced its decision in Dorsey v. United

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States, 132 S.Ct. 2321 (2012), on June 21, 2012. Id. at 3. Indeed, 28 U.S.C. § 2255(f)(3) provides
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that the one-year limitation period shall run from “the date on which the right asserted was initially

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recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court

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and made retroactively applicable to cases on collateral review.” In Dorsey, the Supreme Court

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held that the more lenient penalties of the FSA apply to offenders who committed their crimes

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before, but were sentenced after, the effective date of the Act. 132 S.Ct. at 2335. Thus, Dorsey did

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not decide the specific issue raised in Velasquez’s Motion. Nevertheless, Velasquez’s position is

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foreclosed by United States v. Augustine, in which the Ninth Circuit joined the other courts of

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appeals that have “rejected the argument that Dorsey requires retroactive application of the FSA’s

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mandatory minimums to those sentenced before the Act’s passage.” 712 F.3d 1290, 1295 (9th Cir.

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2013). Velasquez was sentenced on May 26, 2009, prior to the FSA’s effective date of August 3,

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2010. Accordingly, his Motion is untimely under 28 U.S.C. § 2255(f).

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IT IS THEREFORE ORDERED that Velasquez’s Motion to Vacate, Set Aside, Correct, or
Amend Sentence by a Federal Prisoner Pursuant to 28 U.S.C. § 2255 (Doc. #139) is DENIED.

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IT IS SO ORDERED.

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DATED this 5th day of March, 2014.

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__________________________________
LARRY R. HICKS
UNITED STATES DISTRICT JUDGE

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