Lozano De Beltran v. United States of America

Filing 4

MEMORANDUM OPINION AND ORDER OF DISMISSAL by District Judge William P. Johnson DISMISSING with prejudice 1 Motion to Vacate/Set Aside/Correct Sentence (2255); DENYING as moot 3 MOTION to Appoint Counsel and DENYING a certificate of appealability. (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff,
v.

No. 16-00886-WJ-GBW
No. 10-CR-01566-WJ

HORTENCIA LOZANO DE BELTRAN,
Defendant.

MEMORANDUM OPINION AND ORDER OF DISMISSAL
This matter is before the Court, sua sponte under rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts, on Defendant Hortencia Lozano De
Beltran’s Motion For Minor Role Adjustment And Sentence Reduction Based On United States v.
Quintero-Leyva And Pursuant To Amendment 794 And 28 U.S.C. § 2255, filed on August 1,
2016.

[CV Doc. 1; CR Doc. 1412]

Also before the Court is Defendant’s Motion For

Appointment of Counsel, filed on February 6, 2017. [CV Doc. 3] For the reasons explained
below, the Court concludes that Defendant’s § 2255 motion is untimely under § 2255(f) and,
therefore, Defendant’s § 2255 motion will be dismissed with prejudice, Defendant’s Motion For
Appointment of Counsel will be denied as moot, a certificate of appealability will be denied, and
judgment will be entered.
I.

BACKGROUND
Defendant was charged in a Second Superseding Indictment with: (1) Count

1—conspiracy to possess with intent to distribute cocaine, methamphetamine, and marijuana in

violation of 21 U.S.C. § 846; (2) Count 3—distribution of 500 grams and more of cocaine in
violation of 21 U.S.C. §§ 84(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (3) Count 7—possession with
intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B), and 18 U.S.C. § 2; (4) Count 8—use of a person under eighteen years of age to commit
a drug trafficking offense and to assist in avoiding detection or apprehension in the possession with
intent to distribute cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (5) Count
11—distribution of 500 grams and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and
(b)(1)(B), and 18 U.S.C. § 2; (6) Count 14—possession with intent to distribute 500 grams and
more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (7) Count
17—possession with intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (8) Count 18—use of a person under eighteen years
of age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in
the possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2);
(9) Count 21—distribution of 500 grams and more of cocaine in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (10) Count 22—use of a person under eighteen years of
age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in the
distribution of cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (11) Count
25—possession with intent to distribute 500 grams and more cocaine, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (12) Count 26—use of a person under eighteen years of
age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in the
possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (13)
Count 27—possession with intent to distribute 500 grams and more of cocaine in violation of 21
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U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (14) Count 28—use of a person under
eighteen years of age to commit a drug trafficking offense and to assist in avoiding detection or
apprehension in the possession with intent to distribute cocaine in violation of 21 U.S.C. §§
861(a)(1) and (a)(2); (15) Count 29—distribution of 500 grams and more of cocaine in violation of
21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (16) Count 30—use of a person under
eighteen years of age to commit a drug trafficking offense and to assist in avoiding detection or
apprehension in the distribution of cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (17)
Count 36—possession with intent to distribute 500 grams and more of cocaine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. [CR Doc. 550] Pursuant to a plea
agreement, Defendant agreed to plead guilty to Counts 1, 3, 7, 8, 11, 14, 17, 18, 21, 22, 25, 26, 27,
28, 29, 30, and 36 of the Second Superseding Indictment. [CR Doc. 700] Defendant also
waived “the right to appeal a conviction and the sentence imposed” and agreed “to waive any
collateral attack to the defendant’s conviction pursuant to 28 U.S.C. § 2255, except on the issue of
counsel’s ineffective assistance in negotiating or entering into” the plea agreement or waiver.
[CR Doc. 700 at 10]
The Court accepted Defendant’s guilty plea and the plea agreement and sentenced
Defendant to 135 months of imprisonment on each count of the Second Superseding Indictment,
said terms to run concurrently, for a total term of 135 months of imprisonment.1 [CR Docs. 1267;
1274] Additionally, the Court imposed eight years of unsupervised release as to each count of the
Second Superseding Indictment, said terms to run concurrently, for a total term of eight years of
1

At sentencing, the Court imposed a three-level enhancement under the United States Sentencing Guidelines,
U.S.S.G. § 3B1.1(b), due to Defendant’s aggravating role in the offenses as “a manager or supervisor.” [CR Doc.
1267; see also CR Doc. 1121 at 10 (“Ms. Lozano de Beltran concedes that her participation in the drug transactions
rose to the level of manager/supervisor in that she hired many of the persons who transported the drugs, and often
designated who was assigned a particular delivery trip.”)]

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unsupervised release.2 [CR Docs. 1267; 1274] The Court rendered judgment on Defendant’s
conviction and sentence on November 8, 2012. [CR Doc. 1274] Defendant did not file a notice
of appeal.
On August 1, 2016, Defendant filed the present Motion For Minor Role Adjustment And
Sentence Reduction Based On United States v. Quintero-Leyva And Pursuant To Amendment 794
And 28 U.S.C. § 2255. In her motion, Defendant seeks a reduction of her sentence pursuant to
Amendment 794 of the United States Sentencing Guidelines (U.S.S.G.), which amended the
commentary to U.S.S.G. § 3B1.2 to provide “additional guidance to sentencing courts in
determining whether a mitigating role adjustment applies.” See United States Sentencing
Guidelines Manual, Supplement to Appendix C, Amend. 794 (2016). Specifically, the
amendment “provides a non-exhaustive list of factors for the court to consider in determining
whether an adjustment applies and, if so, the amount of the adjustment.” Id. Pursuant to these
factors, and the holding of the United States Court of Appeals for the Ninth Circuit in United States
v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), Defendant contends that she is “not as culpable
as the other participants in the criminal activity” and requests “the proper reduction and resentence
accordingly.” [CV Doc. 1 at 4; CR Doc. 1412 at 4] On February 6, 2017, Defendant filed a
motion for appointment of counsel, “requesting an attorney to proceed with [her] minor role
motion.” [CV Doc. 3]
II.

DISCUSSION
As a preliminary matter, the Court will consider the timeliness of Defendant’s § 2255

motion. See United States v. DeClerck, 252 F. App’x 220, 224 (10th Cir. 2007) (noting that
2

On November 2, 2015, Defendant’s sentence was reduced from 135 months of imprisonment to 108 months of
imprisonment pursuant to 18 U.S.C. § 3582(c)(2), based on a retroactive amendment to the drug quantity table in the
United States Sentencing Guidelines. [CR Doc. 1389; see also CR Doc. 1376]

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“federal district courts are ‘permitted, but not obliged’ to review, sua sponte, a federal prisoner’s §
2255 motion to determine whether it has been timely filed”) (unpublished) (quoting Day v.
McDonough, 547 U.S. 198, 209 (2006)).
A.

Timeliness of Defendant’s § 2255 Motion
Title 28 of the United States Code, section 2255(f)(3) imposes a “1-year period of

limitation” on § 2255 motions, which begins to run on the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created
by governmental action in violation of the Constitution or laws of
the United States is removed, if the movant was prevented from
making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by
the Supreme Court, if that right has been newly recognized by the
Supreme Court and made retroactively applicable to cases on
collateral review; or
(4) the date on which the facts supporting the claim or claims
presented could have been discovered through the exercise of due
diligence.
§ 2255(f)(3). Defendant did not appeal the judgment of conviction and, therefore, it became final
on November 22, 2012--fourteen days after entry of judgment. See United States v. Prows, 448
F.3d 1223, 1227-28 (10th Cir. 2006) (“If the defendant does not file an appeal, the criminal
conviction becomes final upon the expiration of the time in which to take a direct criminal
appeal.”); Fed. R. App. P. 4(b)(1)(A)(i) (“In a criminal case, a defendant’s notice of appeal must be
filed in the district court within 14 days after . . . the entry of . . . the judgment”). Because
Defendant’s § 2255 motion was not filed within one year of the date on which her judgment of
conviction became final, it is untimely under § 2255(f)(1).
Defendant contends that her motion was timely filed because “no relief based on the
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clarifying amendment was available until the amendment became effective on November 1,
2015.” [CV Doc. 1 at 1; CR Doc. 1412 at 1] Defendant’s contention implicates subsections (3)
and (4) of § 2255(f) and, therefore, the Court will address the applicability of each of these
subsections to Defendant’s § 2255 motion.
Subsection (3) of § 2255(f) provides that the one-year statute of limitation may begin to
run on “the date on which the right asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review.” § 2255(f)(3) (emphasis added). Amendment 794 is a clarifying
amendment promulgated by the United States Sentencing Commission, rather than a new
substantive right recognized by the Supreme Court. Therefore, § 2255(f)(3) is inapplicable to
Defendant’s § 2255 motion. See United States v. Trintidia, No. CR-11-138-D, CIV-16-944-D,
2016 WL 4468263, at *2 (W.D. Oklahoma August 24, 2016) (holding that § 2255(f)(3) “does not
apply” to the defendant’s request for sentencing relief under Amendment 794 because the
defendant “does not assert a right newly recognized by the Supreme Court”) (unpublished).
Subsection (4) of § 2255(f) provides that the one-year statute of limitation may be begin to
run on “the date on which the facts supporting the claim or claims presented could have been
discovered through the exercise of due diligence.” § 2255(f)(4) (emphasis added).

“A change

or clarification of controlling law is not a ‘fact’ within the meaning of § 2255(f)(4).” United
States v. Harrison, No. 16-5167, 2017 WL 710426, at *2 (10th Cir. February 23, 2017)
(unpublished). Therefore, “Amendment 794 to the sentencing guidelines is not a ‘fact’ relating to
[the defendant’s] criminal history and does not otherwise allow her to invoke § 2255(f)(4).” Id.
Accordingly, § 2255(f)(4) is inapplicable to Defendant’s § 2255 motion.

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In light of the foregoing, the Court concludes that Defendant’s § 2255 was not timely filed
under § 2255(f).3 United States v. Quintero-Leyva is not inconsistent with this conclusion, since
that case involved a direct criminal appeal and the United States Court of Appeals for the Ninth
Circuit explicitly declined to decide whether a defendant “can move to reopen sentencing
proceedings” via a § 2255 motion. Quintero-Leyva, 823 F.3d at 521 n.1. Therefore,
Defendant’s § 2255 motion is time-barred.
B.

Whether to Recharacterize Defendant’s § 2255 Motion as a § 3582 Motion
Having determined that Defendant’s § 2255 motion is time-barred, the Court next will

consider whether to recharacterize Defendant’s § 2255 motion as a motion to reduce sentence
pursuant to 18 U.S.C. § 3582(c)(2). See Castro v. United States, 540 U.S. 375, 381 (2003)
(“Federal courts sometimes will ignore the legal label that a pro se litigant attaches to a motion and
recharacterize the motion in order to place it within a different legal category.”). Pursuant to §
3582(c)(2), a district court may reduce a term of imprisonment “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, . . . after considering the
factors set forth in section 3553(a) to the extent that they are applicable, if such reduction is
consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C. §
3582(c)(2).
According to the United States Sentencing Commission, “[a] reduction in the defendant’s
term of imprisonment is not consistent with this policy statement and therefore is not authorized

3

Because Defendant’s § 2255 motion was not timely filed, the Court need not reach the question of whether it is
barred by the collateral attack waiver in the plea agreement.

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under 18 U.S.C. 3582(c)(2)” unless the amendment is listed in U.S.S.G. § 1B1.10(d). U.S.S.G. §
1B1.10(a)(2)(A). Amendment 794, which altered the commentary to § 3B1.2 regarding
application of the mitigating role adjustment, is not listed under § 1B1.10(d) and, therefore, cannot
be applied retroactively to reduce a defendant’s sentence under § 3582(c)(2). See U.S.S.G. §
1B1.10(d); see also United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993) (holding that, if an
amendment to the U.S.S.G. is not listed as a retroactive amendment under § 1B1.10(d), then it
“cannot be applied retroactively and it may not serve as a basis on which to reduce [a defendant’s]
sentence” under § 3582) (per curiam); United States v. Fouse, No. 13-CR-0108-001-CVE, 2016
WL 4516066, at *2 (N.D. Oklahoma August 29, 2016) (“Amendment 794 is not listed in the
amendments covered by the policy statement, therefore, the Amendment cannot be applied
retroactively and it may not serve as the basis on which to reduce defendant’s sentence” under §
3582(c)(2)). Because sentencing relief is not available to Defendant under § 3582(c)(2), the
Court declines to recharacterize Defendant’s § 2255 motion as a § 3582 motion.
C.

A Certificate of Appealability Will Be Denied
For the reasons explained above, the Court determines, under rule 11(a) of the Rules

Governing Section 2255 Proceedings for the United States District Courts, that Defendant has
failed to make a substantial showing that she has been denied a constitutional right as required by
28 U.S.C. § 2253(c)(2). Therefore, the Court will deny a certificate of appealability.
III.

CONCLUSION
Defendant’s § 2255 motion is untimely under § 2255(f) and, therefore, it will be dismissed

with prejudice, Defendant’s Motion For Appointment of Counsel will be denied as moot, a
certificate of appealability will be denied, and judgment will be entered.
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IT IS THEREFORE ORDERED that Defendant’s Motion For Minor Role Adjustment
And Sentence Reduction Based On United States v. Quintero-Leyva And Pursuant To
Amendment 794 And 28 U.S.C. § 2255 [CV Doc. 1; CR Doc. 1412] is DISMISSED with
prejudice;
IT IS FURTHER ORDERED that Defendant’s Motion For Appointment of Counsel [CV
Doc. 3] is DENIED as moot;
IT IS FURTHER ORDERED that a certificate of appealability is DENIED; and
judgment will be entered.
_______________________________________
UNITED STATES DISTRICT COURT JUDGE

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