Colon-Torres v. USA
Filing
8
OPINION AND ORDER denied 1 pro se Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Chief Judge Gustavo A. Gelpi on 2/25/2020. (mld)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
MIGUEL A. COLON TORRES
Plaintiff
vs
UNITED STATES OF AMERICA
Defendant
CIVIL 16-2953CCC
(Related Cr. 13-0534-65CCC)
OPINION AND ORDER
Before the Court is petitioner Miguel A. Colón Torres’ Motion to Vacate,
Correct, or Set Aside Sentence Under 18 U.S.C. § 2255 (d.e. 1) filed
November 9, 2016; the United States’ Response in Opposition (d.e. 6) filed
March 21, 2017; and petitioner’s Reply (d.e. 7) filed April 6, 2017.
Amendment 794 Claim
Petitioner argues that he is entitled to a sentence reduction pursuant to
Amendment 794 to the United States Sentencing Guidelines, which clarified
the application of the minor role adjustment and came into effect after
petitioner’s sentence became final. Under 18 U.S.C. § 2255(a), a petitioner
may move for relief on a claim that is not constitutional or jurisdictional in
nature “only if the claimed error is ‘a fundamental defect which inherently
results in a complete miscarriage of justice’ or ‘an omission inconsistent with
the rudimentary demands of fair procedure.’ . . . The error must ‘present
exceptional circumstances where the need for the remedy afforded by the writ
of habeas corpus is apparent.’ Knight v. United States, 37 F.3d 769, 772
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(1st Cir. 1994) (internal citations omitted). The First Circuit has held that
misapplication of the sentencing guidelines, without exceptional circumstances,
does not rise to the level of miscarriage of justice. Knight, 37 F.3d at 773-774.
As petitioner Miguel A. Colón Torres alleges that the Court improperly failed to
apply a minor role reduction without making a showing of exceptional
circumstances, his Amendment 794 claim is not cognizable and must be
denied.
Even if the Court considers defendant’s motion a request for a sentence
reduction under 18 U.S.C. § 3582(c)(2) rather than a § 2255 motion, it must still
fail. Sentence reduction is only available for amendments that are listed at
U.S.S.G. § 1B1.10(c); Amendment 794 is not listed. See id. § 1B1.10(a) (“If
none of the amendments listed in subsection (c) is applicable, a reduction in
the defendant's term of imprisonment under 18 U.S.C. § 3582(c)(2) . . . is not
authorized.”); United States v. Lopez-Pineda, 55 F.3d 693, 697 n. 3
(1st Cir. 1995) (guideline amendment not listed in U.S.S.G. § 1B1.10(c) may
not be applied retroactively).
Ineffective Assistance of Counsel Claim
Petitioner argues that his counsel provided ineffective assistance by
failing to delay his sentencing hearing until November 1, 2015, when
Amendment 794 came into effect. To prevail on an ineffective assistance of
counsel claim under Strickland v. Washington, 466 U.S. 668 (1984), a
"(1) petitioner must show that counsel's representation fell below an objective
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3
standard of reasonableness, and (2) there is a reasonable probability that, but
for counsel's unprofessional errors, the result of the proceeding would have
been different." Argencourt v. United States, 78 F.3d 14 (1st Cir. 1996). In the
context of a guilty plea, a petitioner must demonstrate that "there is a
reasonable probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. 52,
59 (1985).
The failure of petitioner’s counsel to delay sentencing until
Amendment 794 was implemented did not fall below an objective standard of
reasonableness. In fact, it appears that counsel could not have been aware
of Amendment 794 at the time of sentencing: the Sentencing Commission first
published Amendment 794 on May 5, 2015, see 80 Fed. Reg. 25, 782 (May 15,
2015), seven months after petitioner’s sentencing hearing. Further, petitioner
does not argue that he would have gone to trial but for counsel’s failure to
delay sentencing. As petitioner’s claim fails the Strickland test, his ineffective
assistance of counsel claim must be denied.
Conclusion
For the foregoing reasons, petitioner Miguel A. Colón Torres’ Motion to
Vacate, Correct, or Set Aside Sentence Under 18 U.S.C. § 2255 (d.e. 1) is
DENIED. Judgment shall enter by separate order.
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(Related Cr. 13-0534-65CCC)
4
CERTIFICATE OF APPEALABILITY
The Court hereby ORDERS that no certificate of appealability shall be
issued as petitioner failed to make a substantial showing of the denial of a
constitutional right as required by 28 U.S.C. § 2253(c)(2).
SO ORDERED.
In San Juan, Puerto Rico this 25th day of February, 2020.
S/GUSTAVO A. GELPÍ
Chief United States District Judge
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