United States District Court, S.D. California
ORDER DENYING PETITIONER'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. § 2255 AND
MOTION FOR REDUCTION OF SENTENCE UNDER 18 U.S.C. §
3582(C)(2). [DKT. NOS. 47, 51]
GONZALO P. CURIEL, UNITED STATES DISTRICT JUDGE
November 21, 2014, this Court sentenced Petitioner Juan
Francisco Martinez-Perez (“Petitioner”) to
fifty-seven (57) months imprisonment and three (3) years
supervised release based on his guilty plea of knowingly and
intentionally attempting to enter the United States without
the express consent of the Attorney General in violation of 8
U.S.C. § 1326. Dkt. No. 33; Dkt. No. 19 at 2. Petitioner
now brings two motions to vacate, set aside, or correct his
sentence under title 28 U.S.C. § 2255 (“§
2255”) and title 18 U.S.C. § 3582 (“§
3582”) based on Amendment 802 to the United States
Sentencing Guidelines (“U.S.S.G.”) § 2L1.2.
Dkt. No. 47 at 1-2; Dkt. No. 51 at 1-2. Upon review of the
moving papers, the applicable law, and for the following
reasons, the Court DENIES both motions.
February 18, 2014, Petitioner signed a plea agreement,
pleading guilty to attempting to reenter the United States
illegally after removal. Dkt. No. 19 at 2. The Presentencing
Report recommended a sentence of sixty-three (63) months of
imprisonment and three (3) years of supervised release. Dkt.
No. 23 at 17. This Court subsequently sentenced Petitioner to
fifty-seven (57) months imprisonment and three (3) years of
supervised release. Dkt. No. 33.
previously filed a motion to vacate his sentence under §
2255 on May 7, 2015. Dkt. No. 37. This Court denied that
motion primarily on the grounds that Petitioner had waived
his right to collaterally attack his sentence through his
plea agreement. Dkt. No. 43 at 3-4.
instant motions followed. Dkt. No. 47; Dkt. No. 51. The Court
construed the first motion, filed on March 14, 2017, as a
motion to vacate, set aside, or correct sentence under 28
U.S.C. § 2255 and construed the second motion, filed on
March 28, 2017, as a motion for reduction of sentence under
18 U.S.C. § 3582(c)(2). Because the two motions were
identical in content, the Court granted Respondent permission
to file an omnibus response. Respondent, in turn, filed an
opposition on April 25, 2017. Dkt. No. 56. Petitioner did not
file a reply.
Successive 28 U.S.C. § 2255 motions
petitioner is generally limited to one motion under §
2255, and may not bring a ‘second or successive
motion' unless it meets the exacting standards of 28
U.S.C. § 2255(h).” U.S. v. Washington,
653 F.3d 1057, 1059 (9th Cir. 2011) (quoting 28 U.S.C. §
2255). Under § 2255(h), a successive motion must contain
either “(1) newly discovered evidence that, if proven
and viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence that
no reasonable factfinder would have found the movant guilty
of the offense” or “(2) a new rule of
constitutional law, made retroactive to cases on collateral
review by the Supreme Court, that was previously
unavailable.” 28 U.S.C. § 2255. Before filing a
second § 2255 motion, a three-judge panel from the
appropriate court of appeals must certify that the motion
meets the requirements of § 2255(h) and then issue an
order authorizing the district court to consider the
application. 28 U.S.C. § 2244(3).
here, did not obtain authorization from a court of appeals
panel before filing his successive § 2255 motion.
See Washington, 653 F.3d at 1059; see also
28 U.S.C. § 2255(h). Accordingly, and to the extent that
the Court construed Petitioner's request as a § 2255
motion, such a request for relief is denied as successive.
Applying Amendment 802 retroactively in § 3582
can bring a claim to reduce his sentence based on a
subsequent amendment pursuant to 18 U.S.C. § 3582, but
only if the amendment can be applied to his sentence
retroactively. “Absent an ex post facto problem, the
district court must apply the version of the Guidelines in
effect at the time of sentencing.” U.S. v.
Cueto, 9 F.3d 1438, 1440 (9th Cir. 1993). However, when
sentencing ranges are reduced after a defendant's
sentencing, such a reduction can be applied to that
defendant's sentence retroactively “if such a
reduction is consistent with applicable policy statements
issued by the Sentencing Commission.” 18 U.S.C. §
an amendment is a clarification, rather than an alteration,
of existing law, then it should be used in interpreting the
provision in question retroactively.” U.S. v.
Aquino, 242 F.3d 859, 865 (9th Cir. 2001). In deciding
whether an amendment is a substantive alteration or a
clarification, the Ninth Circuit looks to “(1) whether
the amendment is included on the list of retroactive
amendments found in U.S.S.G. § 1B1.10; (2) whether the
Commission itself characterized the amendment as a
clarification; and (3) whether the amendment resolves a
circuit conflict.” See U.S. v. Van Alstyne,
584 F.3d 803, 818 (9th Cir. 2009).
circuits have declined to apply Amendment 802 retroactively
because it is not listed in U.S.S.G. § 1B1.10(d) as a
retroactive amendment. See Paulino, 678 F. App'x
at 58; U.S. v. ...