Covarrubias v. USA

Filing 2

ORDER denying 1 Motion to Vacate Sentence per 28 USC 2255. Further, it is ordered that no certificate of appealability shall issue. Petitioner may seek a certificate from the court of appeals under Fed. R. App. P. 22. Signed by District Judge Barbara B. Crabb on 8/19/2016. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - NICOLAS COVARRUBIAS,
ORDER
Petitioner,
16-cv-549-bbc
12-cr-62-bbc
v.
UNITED STATES OF AMERICA,
Respondent..
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Petitioner Nicholas Covarrubias has petitioned for post conviction relief under 28
U.S.C. § 2255, seeking a reduction in the sentence imposed on him on April 3, 2013, after
he had been found guilty of conspiracy to possess with intent to distribute cocaine. This is
petitioner’s second motion for a modification of his sentence. In his first motion, he sought
a reduction in his sentence under 18 U.S.C. § 3582, arguing that he was entitled to one
because the guidelines for drug crimes such as his had been lowered and given retroactive
effect by the United States Sentencing Commission. His motion was denied because his
sentence was a mandatory term of 10 years under 21 U.S.C. § 841(b)(1) that had been set
by Congress and not by the sentencing commission. Consequently, only Congress could
reduce the term; neither the sentencing commission nor this court had authority to do so.
Order, dkt. #243.
In his newly filed motion for relief, petitioner argues that he is entitled to a reduction

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in his sentence in light of the 2015 amendments to the commentary to U.S.S.G. § 3B1.2.
Unfortunately for defendant, the amendments have no effect on his sentence. First, nothing
in the new amendments suggests that they are to be applied retroactively to sentences that
have become final. Petitioner points out they were applied by the Court of Appeals for the
Ninth Circuit in a recent case, United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir.
2016), but in that case, they were applied retroactively in a direct appeal from a sentence,
not years later in a motion for post conviction relief, and they were applied to a sentence
determined under the sentencing guidelines. This leads to the second reason why the
amendments do not apply to petitioner’s sentence, which is that they are merely sentencing
commission directives, not statutory changes; thus, they have no application to a statutory
sentence such as petitioner’s. I did not rely on the sentencing guidelines in sentencing
petitioner so changes to those guidelines have no effect on petitioner’s term of confinement.
Petitioner has shown no reason why he is entitled to post conviction relief.
Accordingly, his motion must be denied.
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 petitioner.
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
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.

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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.
Although the rule allows a court to ask the parties to submit arguments on whether
a certificate should issue, it is not necessary to do so in this case because the question is not
a close one. Petitioner is free to seek a certificate of appealability from the court of appeals
under Fed. R. App. P. 22, but that court will not consider his request unless he first files a
notice of appeal in this court and pays the filing fee for the appeal or obtains leave to
proceed in forma pauperis.

ORDER
IT IS ORDERED that petitioner Nicolas Covarrubias’s petition for post conviction
relief under 28 U.S.C. § 2255 is DENIED. Further, it is ordered that no certificate of
appealability shall issue. Petitioner may seek a certificate from the court of appeals under
Fed. R. App. P. 22.
Entered this 19th day of August, 2016.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge

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