Cruz-Delgado v. USA

Filing 19

MEMORANDUM ORDER DENYING 14 MOTION to Alter Judgment or to Amend/Correct, filed by Luis A. Cruz-Delgado. Signed by Judge Jose A. Fuste on 04/23/2014.(mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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LUIS A. CRUZ-DELGADO,
Petitioner,

Civil No. 13-1269 (JAF)

v.

(Crim. No. 07-246)

UNITED STATES OF AMERICA,
Respondent.
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MEMORANDUM ORDER

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Luis Cruz-Delgado moves for reconsideration of our denial of his petition to vacate

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his sentence under 28 U.S.C. § 2255. (Docket No. 10.) He claimed in his original petition

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that he received ineffective assistance of counsel. (Docket No. 1.) We denied his petition

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for being untimely. (Docket No. 12.) Because his motion for reconsideration also raises

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ineffective assistance of counsel claims, it is a second or successive petition requiring circuit

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approval that Cruz-Delgado has not received. As a result, his motion is denied.

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Petitioner was charged with two drug-related offenses: One count of aiding and

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abetting the possession of narcotics and one count for possessing a firearm in relation to a

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drug trafficking crime. On January 13, 2011, Petitioner agreed to plead guilty on both

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counts. (Crim. Docket No. 106.) We sentenced Petitioner to 146 months. (Id.) Judgment

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was entered on September 18, 2008. (Crim. Docket No. 108.) On June 3, 2009, Petitioner’s

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conviction was affirmed on appeal. United States v. Cruz-Delgado, Appeal No. 08-2349 (1st

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Cir. 2009).

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conviction final on September 1, 2009. On April 4, 2013—over three and a half years after

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the limitations period expired—Petitioner filed a motion for relief under 28 U.S.C. § 2255.

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(Docket No. 1.) Respondent opposes. (Docket No. 3.) We denied Petitioner’s motion for

Petitioner failed to request a petition for a writ of certiorari—making his

Civil No. 13-1269 (JAF)

-2-

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relief as untimely. (Docket No. 12.) Petitioner moved for reconsideration, arguing that he is

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entitled to relief because he is incarcerated for an offense not authorized by Congress.

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(Docket No. 14.) We deny his motion.

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Petitioner argues that he is entitled to relief because he is incarcerated for an offense

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not authorized by Congress.

According to Petitioner, Count Two of the indictment—

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§ 924(c)(1)(A)(i)—lists two separate offenses: (1) the use or carrying of a firearm in

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furtherance of a drug trafficking crime; and (2) possession of a firearm in furtherance of a

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drug trafficking crime. Petitioner contends that he was indicted based on conduct from the

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section 924(c) possession offense in conjunction with the standard of participation (during

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and in relation) from the use offense, which created a cross-matching of elements that

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resulted in an erroneous, nonexistent standard of participation.

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Contrary to Petitioner’s assertions, 18 U.S.C. § 924(c)(1)(A)(i) outlines sentencing

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factors—not elements of two separate offenses. Petitioner’s novel statutory interpretation of

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§ 924 is also contrary to First Circuit precedent. United States v. O'Brien, 542 F.3d 921, 924

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(1st Cir. 2008). In O’Brien, the court stated that federal laws usually list all offense elements

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in a single sentence and separate the sentencing factors into subsections. When a statute has

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this sort of structure, we presume that its principal paragraph defines a single crime and its

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subsections identify sentencing factors. The Court went on to say that the current version of

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section 924(c) follows this pattern, by asserting that the first sentence (down to the semi-

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colon) sets forth the elements that the jury should find and the corresponding five-year

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minimum sentence; then, the subsequent subparagraphs increase the mandatory minimum

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under various circumstances, which could readily be established at sentencing. See also

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United States v. Haynes, 582 F.3d 686, 704 (7th Cir. 2009) (section 924(c) charges one

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offense that may be committed in more ways than one); United States v. Arreola, 467 F.3d

Civil No. 13-1269 (JAF)

-3-

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1153, 1161 (9th Cir.2006) (concluding that § 924(c) does not list two separate offenses, but

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two ways to commit the same offense).

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Petitioner was properly charged, convicted and sentenced. Petitioner’s motion fails.

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IV.

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Certificate of Appealability
In accordance with Rule 11 of the Rules Governing § 2255 Proceedings, whenever

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issuing a denial of § 2255 relief we must concurrently determine whether to issue a

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certificate of appealability (“COA”). We grant a COA only upon “a substantial showing of

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the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this showing, “[Cruz-

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Delgado] must demonstrate that reasonable jurists would find the district court's assessment

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of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322, 338

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(2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). While Cruz-Delgado has not

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yet requested a COA, we see no way in which a reasonable jurist could find our assessment

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of his constitutional claims debatable or wrong. Cruz-Delgado may request a COA directly

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from the First Circuit, pursuant to Rule of Appellate Procedure 22.

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V.

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Conclusion

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For the foregoing reasons, we hereby DENY Petitioner’s motion for reconsideration.
(Docket No. 14).

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 16th day of August, 2013.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE