Trintidia v. United States of America
Filing
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ORDER denying re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Pedro Sahid Munoz Trintidia. Signed by Honorable Timothy D. DeGiusti on 8/24/2016. (mb)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
PEDRO SAHID MUNOZ TRINTIDIA,
Defendant.
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Case No. CR-11-138-D
(Case No. CIV-16-944-D)
ORDER
Before the Court is Defendant Pedro Sahid Munoz Trintidia’s pro se Motion to
Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 [Doc. No. 316], which
was filed August 15, 2016. Defendant seeks relief from a 188-month prison sentence
imposed August 23, 2012, and reduced to 151-month term on March 24, 2015. See Order
Re. Mot. Sentence Reduction Pursuant to 18 U.S.C. § 3582(c)(2) [Doc. No. 314]. Defendant
claims he is entitled to a recalculation of his guideline sentence based on an amendment to
the Sentencing Guidelines effective November 1, 2015, because he is now “eligible for the
retroactive minor role reduction under U.S.S.G. 3B1.2.” See Motion, at 2. He relies on a
recent decision applying the amendment retroactively in a direct appeal. See United States
v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016).
Upon preliminary review under Rule 4(b) of the Rules Governing Section 2255
Proceedings, the Court finds that the Motion should be summarily dismissed because it
plainly appears from the Motion and the record of prior proceedings that Defendant is not
entitled to relief.
Factual and Procedural Background
On April 20, 2011, Defendant and seven others were charged in the Indictment [Doc.
No. 88] with conspiracy to possess with intent to distribute heroin, in violation of 21 U.S.C.
§ 846. Defendant reached a plea agreement with the government and pleaded guilty to the
Superseding Information [Doc. No. 127] charging him with possession with intent to
distribute heroin, in violation of 21 U.S.C. § 841. Among other things, the parties stipulated
that Defendant distributed more than three kilograms but less than ten kilograms of a mixture
or substance containing a detectable amount of heroin. A presentence investigation report
was prepared, and Defendant made several objections, primarily to the calculation of an
advisory guideline range of imprisonment under the Sentencing Guidelines. At sentencing,
the Court sustained Defendant’s objections in part, but overruled his objection to a four-level
enhancement under U.S.S.G. § 3B1.1 for being a leader or organizer of a drug trafficking
organization involving his codefendants. Under the Court’s findings, Defendant had a total
offense level of 35 and a criminal history category of II, resulting in a guideline range of
imprisonment of 188 to 235 months. On August 23, 2012, the Court imposed a 188-month
prison sentence, and the judgment was entered August 28, 2012. Defendant did not appeal.
On February 2, 2015, Defendant moved for a reduction of his sentence under 18
U.S.C. § 3582(c)(2) based on Amendment 782 to the Sentencing Guidelines effective
November 1, 2014. Because the Sentencing Commission determined that Amendment 782
should be given retroactive effect, and the application of the amendment to Defendant’s
offense resulted in a lower guideline range of imprisonment, Defendant was eligible for a
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reduced sentence under § 3582(c)(2). See United States v. Battle, 706 F.3d 1313, 1317 (10th
Cir. 2013) (“Section 3582(c)(2) prescribes a two-step process. First, a district court must
determine the prisoner’s eligibility for a sentence modification . . . .”) (internal quotation
omitted). The government did not oppose Defendant’s motion. On March 24, 2015, the
Court granted the motion and ordered a reduction of Defendant’s prison sentence to 151
months, effective November 1, 2015.
Defendant’s Motion
Defendant now seeks further relief based on a subsequent amendment to the
Sentencing Guidelines effective November 1, 2015. Amendment 794 did not alter the
subject guideline provision, § 3B1.2, but changed the accompanying commentary regarding
circumstances where a downward adjustment of a defendant’s offense level may be
appropriate due to a mitigating role in the offense. See United States v. Gomez-Valle,
No. 15-41115, 2016 WL 3615688, *2, *3-4 (5th Cir. July 5, 2016) (to be published)
(discussing changes made by the amendment and reasons behind them). Although the
Sentencing Commission did not specify that Amendment 794 should have retroactive effect,
some courts have determined that it was a clarifying amendment and may be applied
retroactively in cases on direct appeal. Id. at *5 (surveying cases). The legal authority on
which Defendant relies for his motion, United States v. Quintero-Leyva, 823 F.3d 519, 523
(9th Cir. 2016), held that Amendment 794 “resolved a circuit split, and was intended as a
clarifying amendment . . . [and therefore] applies retroactively to direct appeals.”
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Discussion
Defendant’s § 2255 Motion is subject to a one-year statute of limitations. See 28
U.S.C. § 2255(f).1 Because the judgment in Defendant’s case became final when the time
to appeal expired, Defendant had one year from September 12, 2012, to file a § 2255 motion.
Defendant’s Motion is therefore untimely under the time limit of § 2255(f)(1). Liberally
construing the Motion, Defendant apparently seeks the benefit of a later one-year period
provided by § 2255(f)(3) or (4). Defendant “ask[s] this Court to construe this motion as a
second in time 2255 motion as the Amendment was not available to [him] before.” See
Motion, at 1.
Under subsection (f)(3), the one-year period runs from “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.” See 28 U.S.C. § 2255(f)(3). By its terms, this provision does not apply because
Defendant does not assert a right newly recognized by the Supreme Court.
Subsection (f)(4) authorizes the running of the limitations period from “the date on
which the facts supporting the claim or claims presented could have been discovered through
the exercise of reasonable diligence.” See 28 U.S.C. § 2255(f)(4). “This provision is an
example of what are called ‘discovery rules’ for delaying the accrual of a cause of action.”
United States v. Denny, 694 F.3d 1185, 1189 (10th Cir. 2012). “Section 2255(f)(4) speaks
to discovery of facts supporting a claim;” it does not apply where the case involves a failure
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The Motion is also governed by other procedural requirements, which are not pertinent here.
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to appreciate “the legal significance of historical facts.” United States v. Collins, 364 F.
App’x 496, 498 (10th Cir. 2010) (unpublished).2 Nor does § 2255(f)(4) apply to “newlydiscovered law” or an intervening change in the law. See Phillips v. United States, 734 F.3d
573, 580 (6th Cir. 2013). In resolving a question as to what facts may trigger § 2255(f)(4),
the Supreme Court has determined it is ones that are “subject to proof or disproof.” See
Johnson v. United States, 544 U.S. 295, 307 (2005). In this case, Defendant bases his § 2255
claim on a change in the Sentencing Guidelines, not the discovery of a predicate fact.
Therefore, the promulgation of Amendment 794 did not start the running of the one-year
limitations period of § 2255(f).
In some cases, a defendant may seek to avoid a time bar through equitable tolling.
“Generally, a litigant seeking equitable tolling bears the burden of establishing two elements:
(1) that he has been pursuing his rights diligently, and (2) that some extraordinary
circumstance stood in his way.” Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005); see also
Holland v. Florida, 670 U.S. 631, 130 S. Ct. 2549, 2562 (2010). Another equitable doctrine,
adopted in McQuiggin v. Perkins, 569 U.S. –, 133 S. Ct. 1924, 1928 (2013), recognizes a
miscarriage of justice exception to the limitations period for cases involving a “gateway”
claim of actual innocence. Here, Defendant does not claim an extraordinary circumstance
prevented a timely filing or claim actual innocence. To the contrary, he states facts showing
his guilt of the drug trafficking offense: He “receive[d] controlled substances from Mexico
and would then sell them to his friends.” See Motion, at 2.
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Unpublished opinion cited pursuant to Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1.
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Conclusion
For these reasons, the Court finds that Defendant cannot overcome the one-year time
limit of § 2255(f). Therefore, his § 2255 motion is time barred and must be dismissed.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Proceedings, the Court
must issue or deny a certificate of appealability (“COA”) when it enters a final order adverse
to a movant. A COA may issue only upon “a substantial showing of the denial of a
constitutional right.” See 28 U.S.C. §2253(c)(2). “A petitioner satisfies this standard by
demonstrating that jurists of reason could disagree with the district court's resolution of his
constitutional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003);
see Slack v. McDaniel, 529 U.S. 473, 484 (2000). Upon consideration, the Court finds this
standard is not met in this case, and a COA should be denied.
IT IS THEREFORE ORDERED that Defendant’s Motion to Vacate, Set Aside, or
Correct Sentence Pursuant to 28 U.S.C. § 2255 [Doc. No. 316] is DISMISSED. A separate
judgment shall be entered accordingly. Further, a COA is denied, and the denial shall be
included in the judgment.
IT IS SO ORDERED this 24th day of August, 2016.
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