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Martinez-Perez v. United States

United States District Court, S.D. California

September 5, 2017

UNITED STATES OF AMERICA, Respondent. Criminal No. 3:14-cr-00106-GPC-1



         On 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.


         On 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.[1] 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.

         Petitioner 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.

         The 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.


         I. Successive 28 U.S.C. § 2255 motions

         “A 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).

         Petitioner, 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.

         II. Applying Amendment 802 retroactively in § 3582 motion

         Petitioner 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. § 3582(c)(2).

         “[W]hen 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).[2]

         Other 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. ...

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