USA v. Pacheco-Huizar et al

AO72A
(Rev. 8/82)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v. CRIMINAL NO. 13-50012-004
GONZALO PONCE-HURTADO DEFENDANT/MOVANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On December 12, 2014, the Defendant/Movant Gonzalo Ponce-Hurtado (hereinafter
“Defendant”) filed a “Motion to Dismiss Indictment, Conviction and Sentence for of [sic]
Exclusive Legislative and Subject Matter Jurisdiction Pursuant to Rule 12(b)(1) Federal
Rule[s] of Civil Procedure.” (Doc. 154.) The Government has filed a Response (Doc. 158),
and the matter is now ripe for consideration.
BACKGROUND
On May 29, 2013, Defendant pled guilty, pursuant to a written plea agreement, to
conspiring to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1). On March 20,
2014, a judgment was entered sentencing the Defendant to 210 months imprisonment, 3 years
supervised release, and a $15,000.00 fine. Defendant appealed his sentence and the Eighth
Circuit Court of Appeals issued a mandate affirming the sentence on January 23, 2015.
Defendant was subsequently found eligible for a sentence reduction under Amendment 782 to
the Sentencing Guidelines Drug Quantity Table and his term of imprisonment was reduced from
210 months to 168 months. (Doc. 161.)
In the motion currently before the Court, purported to be filed pursuant to Rule 12(b)(1)
of the Federal Rules of Civil Procedure, Defendant asserts that this Court lacked jurisdiction to
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AO72A
(Rev. 8/82)
indict, convict or sentence him, as he was “arrested in a private drive located in Laredo, Texas,
not on property belonging to the United States.” (Doc. 154 at pg. 2.) Defendant’s motion is
subject to dismissal.
DISCUSSION
First, Rule 12(b)(1) of the Federal Rules of Civil Procedure does not apply in this
criminal action. See Fed. R. Civ. P. 1 (These rules govern the procedure in all civil actions and
proceedings in the United States district courts). While a motion for lack of jurisdiction may be
made under Rule 12(b)(3) of the Federal Rules of Criminal Procedure, the motion must be filed
“while the case is pending.” As Defendant has already been convicted, sentenced, and pursued
appellate relief, his case is not still pending and he, therefore, cannot seek relief under this Rule.
Further, Defendant admitted in the factual basis of the plea agreement that he conspired
with others in the distribution of methamphetamine in the Western District of Arkansas. (Doc.
72 ¶ 2.f.) Thus, Defendant could be prosecuted in this District for any overt acts by any of his
co-conspirators in this District and it is irrelevant where his own actions occurred or where he
was arrested. See United States v. Keys, 721 F.3d 512, 519 (8 Cir. 2013).th
Finally, to the extent that Defendant argues that federal jurisdiction was lacking because
he was arrested on private property within the State of Texas, federal courts have exclusive
jurisdiction over offenses against the laws of the United States under 18 U.S.C. § 3231.
Defendant pled guilty to distributing methamphetamine, in violation of 21 U.S.C. § 841(a)(1),
a federal criminal statute. Thus, Defendant’s challenge to federal jurisdiction is meritless. See
United States v. Russell, 30 Fed. Appx. 348, 351-352 (6 Cir. 2002); United States v. Hutsell,th
2015 WL 770324, *8 (E.D. Ky. Feb. 20, 2015) .
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CONCLUSION
Based upon the forgoing, the undersigned recommends that Defendant’s “Motion to
Dismiss Indictment, Conviction and Sentence for of [sic] Exclusive Legislative and Subject
Matter Jurisdiction Pursuant to Rule 12(b)(1) Federal Rule[s] of Civil Procedure.” (Doc.
154) be denied and dismissed with prejudice.
The parties have fourteen days from receipt of this report and recommendation in
which to file written objections pursuant to 28 U.S.C. Section 636(b)(1). The failure to file
timely written objections may result in waiver of the right to appeal questions of fact. The
parties are reminded that objections must be both timely and specific to trigger de novo
review by the district court.
Dated this 26 day of May, 2015.th
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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