Vasquez v. USA

Filing 2

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Court declines to issue a Certificate of Appealability. Signed by District Judge Robert J. Conrad, Jr on 9/26/16. (Pro se litigant served by US Mail.)(ssh)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:16-cv-00644-RJC
(3:14-cr-00037-RJC-1)
ERNESTO GARCIA VASQUEZ,
Also known as FRANCISCO ERNESTO
GARCIA-LOPEZ,
v.
UNITED STATES OF AMERICA,
Respondent.

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ORDER

THIS MATTER is before the Court on consideration of Petitioner’s pro se Motion to
Vacate, Set Aside or Correct Sentence which is filed pursuant to 28 U.S.C. § 2255. For the
reasons that follow, Petitioner’s § 2255 Motion to Vacate will be dismissed.
I.

BACKGROUND
On July 3, 2014, Petitioner pleaded guilty pursuant to a written plea agreement to one

count of conspiracy to possess with intent to distribute and the distribution of at least one
kilogram of heroin, in violation of 21 U.S.C. § 846 (Count One). In exchange for Petitioner’s
plea, the Government agreed to dismiss the remaining counts in his indictment. The plea
agreement also provided that its terms were contingent upon the acceptance of pleas to one count
of conspiracy to distribute and possess with intent to distribute one kilogram of heroin, in Case
No. 3:14-cr-00013-RJC; and one count of illegal reentry of a deported alien, in violation of 8
U.S.C. § 1326(a) in Case No. 3:13-cr-00303-RJC, both of which charges were pending in this
District. (3:14-cr-00037, Doc. No. 34: Plea Agreement; Doc. No. 36: Acceptance and Entry of
Guilty Plea).
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In Petitioner’s presentence report (PSR), the probation officer calculated a total offense
level of 33, which included a two-level enhancement for being an organizer, leader, manager, or
supervisor in the heroin distribution conspiracy, pursuant to § 3B1.1(c) of the U.S. Sentencing
Guidelines Manual (USSG) (2014), and with a criminal history category of II, Petitioner’s
Guidelines range was 151-188 months’ imprisonment. On May 27, 2015, Petitioner was
sentenced to a term of 168-months’ imprisonment and he did not appeal. (Id., Doc. No. 46:
Judgment).
II.

STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings, sentencing

courts are directed to promptly examine motions to vacate, along with “any attached exhibits and
the record of prior proceedings” in order to determine whether a petitioner is entitled to any
relief. The Court has considered the record in this matter and applicable authority and concludes
that this matter can be resolved without an evidentiary hearing. See Raines v. United States, 423
F.2d 526, 529 (4th Cir. 1970).
III.

DISCUSSION
In this collateral proceeding, Petitioner contends he is entitled to sentencing relief based

on Amendment 794 to § 3B1.2 of the Guidelines. (3:16-cv-00644, Doc. No. 1: Motion to Vacate
at 2, 5). Amendment 794 altered the Commentary to § 3B1.2 of the Guidelines to address what
the Commission considered an inconsistent application of the mitigating role reduction for lowlevel offenders. In particular, the amendment added a non-exhaustive list for the court to
consider when determining whether to apply a reduction, and if the court found the guideline
applicable, to what extent it should be applied to the guidelines calculation. See USSG § 3B1.2

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cmt. n.3(C) (2015). The Commission made the amendment effective for defendants sentenced on
or after November 1, 2015. As noted, Petitioner was sentenced on May 27, 2015.
The Antiterrorism and Effective Death Penalty Act provides, in relevant part, as follows:
(f) A 1-year period of limitation shall apply to a motion under this
section. The limitation period shall run from 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.
28 U.S.C. § 2255(f).
Petitioner’s criminal judgment was filed on June 12, 2015, and he did not appeal;
therefore his judgment became final fourteen days later on Friday, June 26th. Petitioner’s § 2255
Motion to Vacate was filed on August 16, 2016, at the earliest, which is the date he avers that he
placed the motion in the prison’s mailing system. See Houston v. Lack, 487 U.S. 266, 276
(1988). (Motion to Vacate at 6).
Petitioner explains that his Motion to Vacate is timely, however, because it was filed
within one year from the date Amendment 794 became effective. This argument is without merit,
first because the amendment does not represent a right that was recognized by the Supreme
Court that is retroactive to cases on collateral review, and second, because Amendment 794, by
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its very terms, is only applicable to defendants that were sentenced on or after November 1,
2015.
IV.

CONCLUSION
For the reasons stated herein, the Court finds that Petitioner’s § 2255 Motion to Vacate is

untimely and it will be dismissed.
IT IS, THEREFORE, ORDERED that Petitioner’s Motion to Vacate is DENIED and
DISMISSED WITH PREJUDICE. (Doc. No. 1).
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Cases, the Court declines to issue a certificate of appealability as Petitioner has not
made a substantial showing of a denial of a constitutional right. 28 U.S.C. § 2253(c)(2); MillerEl v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to satisfy § 2253(c), a petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the constitutional
claims debatable or wrong); Slack v. McDaniel, 529 U.S. 474, 484 (2000) (holding that when
relief is denied on procedural grounds, a petitioner must establish both that the correctness of the
dispositive procedural ruling is debatable, and that the petition states a debatably valid claim of
the denial of a constitutional right).
The Clerk is directed to close this civil case.
SO ORDERED.
Signed: September 26, 2016

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