Anguiano v. United States of America

Filing 5

MEMORANDUM OPINION AND ORDER by Senior District Judge James A. Parker dismissing with prejudice 1 Motion to Vacate/Set Aside/Correct Sentence (2255) and denying certificate of appealability (bap)

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

UNITED STATES OF AMERICA,
Plaintiff,
v.

No. 16-00926-JAP-GBW
No. 12-CR-00529-JAP

VERONICA ANGUIANO,
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 Veronica Anguiano’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 9,
2016. [CV Doc. 1; CR Doc. 107] 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, a certificate of appealability will be denied, and judgment will be
entered.
I.

BACKGROUND
Defendant was charged by Indictment with: (1) Count 1—conspiracy to possess with

intent to distribute 500 grams and more of methamphetamine in violation of 21 U.S.C. § 846; and
(2) Count 2—possession with intent to distribute 500 grams and more of methamphetamine in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. [CR Doc. 30] Pursuant to

a plea agreement, Defendant plead guilty to Count 2 of the Indictment charging her with
possession with intent to distribute 500 grams and more of methamphetamine in violation of 21
U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. [CR Doc. 73] Additionally, Defendant
agreed to waive “the right to appeal the Defendant’s conviction(s) and any sentence and fine
within or below the applicable advisory guideline range as determined by the Court” and to waive
“any collateral attack to the Defendant’s conviction(s) pursuant to 28 U.S.C. § 2255, except on the
issue of counsel’s ineffective assistance in negotiating or entering” the plea agreement or waiver.
[CR Doc. 73 at 7]
The Court accepted Defendant’s guilty plea and the plea agreement and sentenced
Defendant to 96 months of imprisonment in the custody of the Bureau of Prisons and 15 years of
unsupervised release. [CR Docs. 86, 87] The Court rendered judgment on Defendant’s
conviction and sentence on July 15, 2013, followed by an amended judgment on July 26, 2013.
[CR Doc. 87, 88] Defendant did not file a notice of appeal.
On August 9, 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

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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 was “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. 107 at 4]
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
“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 August 9, 2013—fourteen days after entry of the amended judgment. See United States v.
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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
clarifying amendment was available until the amendment became effective on November 1,
2015.” [CV Doc. 1 at 1; CR Doc. 107 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

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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.
In light of the foregoing, the Court concludes that Defendant’s § 2255 motion was not
timely filed under § 2255(f). 1 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

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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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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
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

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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, a certificate of appealability will be denied, and judgment will be entered.
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. 107] is DISMISSED with
prejudice; a certificate of appealability is DENIED; and judgment will be entered.

_______________________________________
UNITED STATES DISTRICT COURT JUDGE

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