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United States v. Burgos

United States District Court, D. Nevada

October 27, 2017

UNITED STATES OF AMERICA, Plaintiffs,
v.
JESUS GUADALUPE FELIX BURGOS, et al., Defendants.

          ORDER

         Presently before the court is petitioner Jesus Guadalupe Felix Burgos's pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C § 2255. (ECF No. 417). The government has filed a timely response. (ECF No. 419). Petitioner has not replied, and the period to do so has since expired.

         I. Facts

         On February 8, 2011, a grand jury returned a six-count indictment against multiple defendants, and charged petitioner on counts 1, 5 and 6. (ECF No. 1). On February 7, 2012, petitioner pleaded guilty to count 1 of the indictment. (ECF Nos. 175, 176).

         On May 29, 2012, the court sentenced petitioner to 135 months, followed by five years of supervised release. (ECF Nos. 236, 238). On June 26, 2012, petitioner appealed (ECF No. 248). The court of appeals affirmed the judgment on September 5, 2013. (ECF No. 324).

         On July 16, 2015, the court reduced petitioner's sentence from 135 months to 120 months, pursuant to an amendment to the mandatory minimum sentencing provisions of 18 U.S.C § 3582(c). (ECF No. 378).

         In the instant motion, petitioner moves to vacate his sentencing and remand for resentencing pursuant to the minor participant provision of Amendment 794 to the United States Sentencing Guidelines (“USSG”) and United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016). (ECF No. 417).

         II. Legal Standard

         Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). Section 2255 relief should be granted only where “a fundamental defect” caused “a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).

         Limitations on § 2255 motions are based on the fact that the movant “already has had a fair opportunity to present his federal claims to a federal forum, ” whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed to provide criminal defendants multiple opportunities to challenge their sentence.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

         III. Discussion

         In the instant motion, petitioner asks this court to vacate his sentencing and remand for resentencing pursuant to the minor participant provision of Amendment 794 to the USSG and Quintero-Leyva, 823 F.3d at 524. (ECF No. 417). Specifically, petitioner argues Quintero-Leyva establishes that Amendment 794 is a “clarifying amendment, ” and thus applies retroactively, entitling a petitioner to relief. Id. at 15.

         The court disagrees. Petitioner has brought his claim under a 28 U.S.C § 2255 motion. According to the United States Supreme Court, relief under § 2255 requires allegation of a constitutional or jurisdictional error, a “fundamental defect which inherently results in a complete miscarriage of justice, ” or “an omission inconsistent with the rudimentary demands of fair procedure.” United States v. Timmreck, 441 U.S. 780, 783-84 (1979). Here, petitioner makes no such assertions and, thus, has failed to show constitutional or jurisdictional error, a complete miscarriage of justice, or any omission inconsistent with the rudimentary demands of fair procedure. Therefore, his claim falls outside of the finite bases for relief for § 2255 motions, as explained by Timmreck.

         Additionally, while § 2255 covers most post-conviction challenges, 18 U.S.C § 3582 allows for narrow circumstances where a defendant may request a sentence modification. Liberally construing petitioner's pro se filing, the court will address his claim as if brought under § 3582. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (“a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers”); Estelle v. Gamble, 429 U.S. 97, 106 (1976) (holding that pro se documents are to be “liberally construed”).

         Sentence modification under § 3582 is allowed only “in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission” and the reduction in question “is consistent with applicable policy statements issued by the Sentencing Commission.” 18 U.S.C § 3582(c)(2). Further, § 1B1.10 of the Sentencing Guidelines clarifies that sentence reduction under § 3582(c)(2) does not apply if the amendment relied upon is not “an amendment listed in subsection (d) [of § 1B1.10].” U.S.S.G § 1B1.10(a)(2). Amendment 794 is not incorporated within the ...


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