Morales-Perez v. United States Of America

Filing 5

MEMORANDUM OPINION AND ORDER as to Marleny Morales-Perez.......that the motion, construed as one for resentencing pursuant to § 3582(c)(2), is denied. IT IS FURTHER ORDERED that a certificate of appealability shall not be granted. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Hoffler v. Bezio, 726 F.3d 144, 154 (2d Cir. 2013); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriquez v. Scully, 90 5 F.2d 24, 24 (2d Cir. 1990). Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). (Signed by Judge Denise L. Cote on 10/27/2016) Copy Mailed By Chambers to Manleny (Marleny) Morales-Perez (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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UNITED STATES OF AMERICA,
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MARLENY MORALES-PEREZ,
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Defendant.
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11cr00881-01 (DLC)
MEMORANDUM OPINION
AND ORDER

DENISE COTE, District Judge:
On June 28, 2013, Marleny Morales-Perez (“Morales”) was
sentenced principally to a term of imprisonment of 84 months
after pleading guilty pursuant to a plea agreement to conspiracy
to distribute and possess with intent to distribute cocaine and
heroin in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846.

The

Presentence Report calculated Morales’ sentencing guidelines
range as 108 to 135 months’ imprisonment, reflecting an offense
level of 31 and a Criminal History Category of I.

Morales did

not appeal her conviction.
On July 7, 2014, Morales filed a timely petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2255, arguing that she
was entitled to a minor role adjustment and a reduction in
sentence.

The petition was denied on October 30, 2014, because

(1) any challenge to the substantive or procedural
reasonableness of the sentence had to be made through a direct
appeal; (2) she waived her right to appeal any sentence below

135 months’ imprisonment; and (3) she did not play a minor role
in the offense.

Morales v. United States, No. 11-cr-881(DLC),

2014 WL 5493240 (S.D.N.Y. Oct. 30, 2014).

On November 12, 2014,

Morales filed a motion to reduce sentence pursuant to 18 U.S.C.
§ 3582(c)(2), which was denied on October 29, 2015, because the
defendant’s original sentence was lower than the amended drug
guidelines range.
On August 9, 2016, Morales filed a petition pursuant to 28
U.S.C. § 2255 seeking a minor role adjustment and sentence
reduction, arguing that she is entitled to receive the benefit
of Amendment 794 to the Sentencing Guidelines, U.S.S.G. App. C.
Amend. 794 (effective November 1, 2015), which the Ninth Circuit
has applied retroactively in the context of a direct appeal.
See United States v. Quintero-Leyva, 823 F.3d 519, 522 (9th Cir.
2016).

On August 15, the Court transferred the petition to the

Court of Appeals for the Second Circuit as a successive habeas
petition.

On October 17, in connection with Morales’ motion to

proceed in forma pauperis, the Court of Appeals found that Perez
“may be seeking a sentence reduction in connection with
Amendment 794 of the United States Sentencing Guidelines, which
is governed by 18 U.S.C. [§] 3582(c)(2) and not 28 U.S.C.
§ 2255” and transferred the petition back to this Court “to
determine, in the first instance, whether Petitioner should
receive a sentence reduction.”

Morales v. United States, No.
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16-2826 (2d Cir. Oct. 17, 2016).

In accordance with the Second

Circuit’s order and this Court’s Opinion and Order in United
States v. Perez, No. 08-cr-00429-06(DLC), 2016 WL 4775536
(S.D.N.Y. Sept. 14, 2016), Morales’ August 9 petition will be
construed as a motion pursuant to 18 U.S.C. § 3582(c)(2).
Section 3582(c)(2) permits a court to reduce a sentence “in
circumstances specified by the” Sentencing Commission.
v. United States, 560 U.S. 817, 825 (2010).

Dillon

Under § 3582(c)(2),

a court may only modify a sentence either (1) upon the motion of
the Director of the Bureau of Prisons if certain requirements
are met, (2) when expressly permitted by statute or Rule 35 of
the Federal Rules of Criminal Procedure, or (3) when a defendant
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) . . . if
such a reduction is consistent with applicable policy statements
issued by the Sentencing Commission.”
see U.S.S.G. § 1B1.10(a)(1).

18 U.S.C. § 3582(c)(2);

Morales’ motion concerns only the

third ground for resentencing, and her argument is without
merit.
A court has authority to reduce an otherwise final sentence
based on the third ground only if the amendment was intended by
the Sentencing Commission to be applied retroactively.
§ 1B1.10(a)(1).

U.S.S.G.

“A court’s power under § 3582(c)(2)” therefore
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“depends in the first instance on the Commission’s decision not
just to amend the Guidelines but to make the amendment
retroactive.”

Dillon, 560 U.S. at 826.

See also United States

v. Rivera, 662 F.3d 166, 171 (2d Cir. 2011) (“[E]ligibility for
a sentence reduction under 18 U.S.C. § 3582(c)(2) is triggered
only by an amendment listed in subsection [(d)]” (citation
omitted)).

The Guidelines Manual lists the amendments that the

Sentencing Commission has decided shall be applied
retroactively, and Amendment 794 is not listed.
§ 1b1.10(d).

U.S.S.G.

Therefore, the Court has no authority to reduce

Morales’ sentence under § 3582(c)(2).
Morales contends that she is entitled to a retroactive
reduction, relying on Quintero-Leyva, 823 F.3d 519.

Quintero-

Levya addressed Amendment 794 in the context of a direct appeal,
and is therefore inapposite.

Id. at 522.

See, e.g., United

States v. Armstrong, 347 F.3d 905, 908–09 (11th Cir. 2003)
(“While consideration

of [the amendment] as a clarifying

amendment may be necessary in the direct appeal of a sentence or
in a petition under § 2255, it bears no relevance to determining
retroactivity under § 3582(c)(2).”); United States v. TorresAquino, 334 F.3d 939, 941 (10th Cir. 2003) (“The question
whether an amendment to the guidelines is clarifying or
substantive goes to whether a defendant was correctly sentenced
under the guidelines in the first place, not to whether a
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correct sentence has subsequently been reduced by an amendment
to the guidelines and can be modified in a proceeding under §
3582(c)(2).”); United States v. Lykes, 73 F.3d 140, 143 n.2 (7th
Cir. 1995) (the defendant’s “argument that this court erred in
determining that [the amendment] was substantive is not relevant
to our determination of this § 3582(c)(2) motion, which is
governed by § 1B1.10” (citation omitted)).
Further, even if it were appropriate to reach the merits of
the issue raised by Morales, her motion would be denied.

As

previously noted in denying Morales’ § 2255 petition, in which
she also requested a minor role reduction, “Morales served as a
broker for multi-kilogram sales of narcotics.

Her role in the

offense of conviction does not warrant a minor role adjustment.”
Perez, 2014 WL 5493240, at *1.

The same is true today.

Accordingly, it is hereby
ORDERED that the motion, construed as one for resentencing
pursuant to § 3582(c)(2), is denied.
IT IS FURTHER ORDERED that a certificate of appealability
shall not be granted.

The petitioner has not made a substantial

showing of a denial of a federal right and appellate review is,
therefore, not warranted.

Hoffler v. Bezio, 726 F.3d 144, 154

(2d Cir. 2013); Tankleff v. Senkowski, 135 F.3d 235, 241 (2d
Cir. 1998); Rodriquez v. Scully, 905 F.2d 24, 24 (2d Cir. 1990).
Pursuant to 28 U.S.C. § 1915(a)(3), any appeal from this Order
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would not be taken in good faith.

Coppedge v. United States,

369 U.S. 438, 445 (1962).
Dated:

New York, New York
October 27, 2016
__________________________________
DENISE COTE
United States District Judge

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