Luna v. USA

Filing 4

MEMORANDUM OPINION and ORDER: all relief movant sought by the Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody he filed on June 8, 2016, be, and is hereby, denied. A certificate of appealability be, and is hereby, denied, as movant has not made a substantial showing of the denial of a constitutional right. (Ordered by Judge John McBryde on 6/9/2016) (npk)

U.S. !)!STRlCT conn

NORTHERN ni",HlCTO{ lEX·'S

FIt

n

IN THE UNITED STATES DISTRICT COURT I---······~·::l

NORT:R~ :~:;HRIDCI~IO:IO~XA

L~_~_~:~J
(I H(K, lLS. DlSTRICTCOlJIU
B) _ _--:;

ARTHUR RAY LUNA,

§
§

Movant,

§
§

VS.
UNITED STATES OF AMERICA,
Respondent.

Deputy

§
§
§
§

NO. 4:16-CV-436-A
(NO. 4:12-CR-045-A)

§

MEMORANDUM OPINION
and
ORDER
This is a late-filed motion under 28 U.S.C.

§

2255 to

vacate, set aside, or correct sentence by a person in federal
custody.

Movant, Arthur Ray Luna, was sentenced on a plea of

guilty to the offense of conspiracy to distribute and possess
with intent to distribute a controlled substance, and was
sentenced in August 2012 based on his conviction resulting from
that plea of guilty.

Luna seeks to avoid the one-year

limitations bar created by 28 U.S.C.

§

2255(f) by claiming

applicability to his case of the holding of the Supreme Court in
Johnson v. united States, 576 U.S.

, 135 S. Ct. 2551 (2015).

Movant is mistaken; Johnson has no relevance to his case.
His base offense level was determined by the quantity of the
drugs that were involved in the drug conspiracy for which he was
convicted.

He received a two-level increase pursuant to the

_

authority of USSG §2D1.1(b) (1) because a dangerous weapon was
possessed as part of the criminal drug-trafficking conduct, and
he received another two-level increase pursuant to USSG
§2D1.1(b) (5) because of the importation of the methamphetamine
involved in the conspiracy.

Those factors, when reduced by three

levels based on acceptance of responsibility, led to a total
offense level of 35.

That offense level combined with movant's

criminal history category of III led to a guideline imprisonment
range of 210 to 262 months.

Movant received a sentence of

imprisonment of 240 months.
As the court so often is seeing since the Johnson decision,
certain of the allegations in movant's motion and virtually
everything said in his Memorandum of Supporting Facts are
nonsense.

There is nothing in the record of movant's criminal

action that would remotely suggest that movant received any kind
of sentencing enhancement that would be based on a
constitutionally vague statutory provision.
Therefore,
The court ORDERS that all relief movant sought by the Motion
under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody he filed on June 8, 2016, be, and
is hereby, denied.

2

Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2255
Proceedings for the united States District Courts, and 28 U.S.C.
§

2253(c) (2), for the reasons discussed herein, the court further

ORDERS that a certificate of appealability be, and is hereby,
denied, as movant has not made a substantial showing of the
denial of a constitutional right.
SIGNED June 9, 2016.

RYDE
States District

3