VALTIERRA, GERALDO v. USA

Filing 16

Transmission of Notice of Appeal, Appeal Information Sheet, Order, Judgment and Docket Sheet to Seventh Circuit Court of Appeals re 15 Notice of Appeal. (Attachments: # 1 Appeal Information Sheet, # 2 Order, # 3 Judgment, # 4 Docket Sheet) (lak)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - UNITED STATES OF AMERICA,
OPINION AND ORDER
Plaintiff,
13-cv-499-bbc
06-cr-126-bbc
v.
GERARDO VALTIERRA,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Defendant Gerardo Valtierra’s motion for reconsideration of the denial of his July 10,
2013 motion for post conviction relief is before the court after briefing on one question,
whether he has a valid claim for resentencing in light of the Supreme Court’s recent opinion
in Alleyne v. United States, 113 S. Ct. 420 (2013). In his motion for reconsideration, he
alleges that at sentencing the court had determined the amount of cocaine for which he was
responsible and that this was improper in light of Alleyne. This claim is no more successful
than the ones he raised in his original motion, which were dismissed as untimely.
In Alleyne, the Supreme Court held for the first time that only the jury could
determine the drug amounts that subject a defendant to a mandatory minimum sentence.
This holding is of no help to defendant because the jury in his case did determine the
minimum amounts of drugs for which he should be held responsible: at least five kilograms
or more of powder cocaine and 50 grams or more of cocaine base. This finding meant that

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the minimum mandatory sentence would set the floor for defendant’s sentence.
At sentencing, I found that defendant was responsible for 194 kilograms of cocaine.
The fact that this amount exceeded the five kilograms the jury had attributed to defendant
was not a bar to sentencing defendant to a sentence considerably higher than the mandatory
minimum sentence. It remains the court’s task to decide where in the advisory guideline
range a particular sentence should fall, once the jury has found the defendant responsible for
the drug amounts that implicate the mandatory minimum sentence. Apprendi v. New
Jersey, 530 U.S. 466 (2000) (not “impermissible for judges to exercise discretion—taking
into consideration various factors relating both to offense and offender—in imposing a
sentence within the range prescribed by statute”).
Moreover, even if defendant had been sentenced above the mandatory minimum
sentence in the absence of a jury finding that the drug amounts exceeded the amount
justifying the minimum sentence, he could not challenge his sentence at this time. The
decision in Alleyne has no effect on sentences imposed before June 17, 2013, Simpson v.
United States, 721 F.3d 875, 876 (7th Cir. 2013), and defendant was sentenced on
February 16, 2007.
Under Rule 11 of the Rules Governing Section 2255 Proceedings, the court must
issue or deny a certificate of appealability when entering a final order adverse to a defendant.
To obtain a certificate of appealability, the applicant must make a "substantial showing of
the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); Tennard v. Dretke, 542 U.S.
274, 282 (2004). This means that "reasonable jurists could debate whether (or, for that

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matter, agree that) the petition should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to proceed further." Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003) (internal quotations and citations omitted). Defendant
has not made a substantial showing of a denial of a constitutional right so no certificate will
issue.
When the question in a post conviction motion is a close one, the rule allows a court
to ask the parties to submit arguments on whether a certificate should issue. In this case,
the question is not close. It is not a matter of debate that in defendant’s case the jury
determined the minimum amounts of drugs for which defendant should be held responsible
at sentencing, which means that Alleyne has no application to his case.

ORDER
IT IS ORDERED that defendant Gerardo Valtierra’s motion for reconsideration of
his July 10, 2013 motion for post conviction relief under 28 U.S.C. § 2255 is DENIED for
his failure to show that he is entitled to such relief. Further, it is ordered that no certificate
of appealability shall issue. Defendant may seek a certificate from the court of appeals under
Fed. R. App. P. 22.
Entered this 23d day of September, 2013.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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