USA v. Aguirre-Jeronimo 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. 10-50110-003
JUAN SANCHEZ-SANCHEZ DEFENDANT/MOVANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On December 3, 2014, the Defendant/Movant Juan Sanchez–Sanchez (hereinafter
“Defendant”) filed a “Notice of Motion and Motion for Vacature [sic] of Judgment that is Void
for Want of Subject Matter Jurisdiction Where the Plaintiff has Failed to Establish Article III
Standing to Sue Rule 60(b)(4), Fed. R. Civ. Proc.” (Doc. 242.) The Government has filed a
Response (Doc. 253), and the Defendant has filed a Reply. (Doc. 256).
BACKGROUND
On January 13, 2011, Defendant was named in one count of a four-count Second
Superseding Indictment filed in the United States District Court for the Western District of
Arkansas. (Doc. 62). Count One charged Defendant with conspiring to distribute more than 50
grams of a mixture or substance containing methamphetamine, in violation of Title 21 U.S.C.
§§ 841(a)(1) and (b)(1)(A)(viii), and Title 21 U.S.C. § 846.
On April 12, 2011, a pretrial conference was conducted and the case then proceeded to
trial, with a jury being selected and the trial set to begin the following morning. On the morning
of April 13, 2011, counsel for the Government and the Defendant advised the Court that they had
entered into a Plea Agreement. Pursuant to the written Plea Agreement, Defendant waived
indictment and pled guilty to an Information charging him with conspiracy to distribute
Case 5:10-cr-50110-TLB Document 258 Filed 05/07/15 Page 1 of 4 PageID #:
<pageID>

AO72A
(Rev. 8/82)
methamphetamine, in violation of 21 U.S.C. §§ 841 (a) and 846. (Docs. 111, 112, 115). On
August 4, 2011, Defendant was sentenced to 240 months imprisonment, 5 years supervised
release, a $25,000.00 fine, and a $100 special assessment. (Doc. 136).
On August 18, 2011, Defendant filed a Notice of Appeal. (Doc. 142). On appeal,
Defendant’s counsel filed a motion to withdraw and a brief under Anders v. California, 386 U.S.
738 (1967), asserting that Defendant’s plea was not knowing and voluntary. United States v.
Sanchez-Sanchez, 451 F. App'x 614, 615 (8th Cir. 2012) (unpublished opinion). Defendant filed
a pro se supplemental brief, arguing that he was sentenced “on the wrong criminal history
category level” and the “wrong level according to weight.” (Doc. 174, p. 19). The Eighth
Circuit Court of Appeals found that any challenge to the voluntariness of Defendant’s guilty plea
was not cognizable on direct appeal because Defendant did not move to withdraw his plea in the
district court. The Eighth Circuit, having reviewed the record independently under Penson v.
Ohio, 488 U.S. 75 (1988), found no nonfrivoulous issues for appeal. Accordingly defense
counsel was granted leave to withdraw, and the District Court’s judgment was affirmed.
On February 27, 2012, Defendant filed a pro se Motion to Vacate under 28 U.S.C. §
2255. (Doc. 174). On July 31, 2013, the Court entered an order adopting the undersigned’s
Report and Recommendation, denied and dismissed Defendant’s § 2255 motion, and declined
to issue a certificate of appealability. (Doc. 221.) On January 30, 2014, the Eighth Circuit Court
of Appeals entered a judgment denying Defendant’s certificate of appealability and dismissed
his appeal. (Doc. 237-1.) The mandate was issued on April 17, 2014. (Doc. 237.)
In the motion now before the Court, which Defendant has purported to file pursuant to
Rule 60(b)(4) of the Federal Rules of Civil Procedure, Defendant asserts:
-2-
Case 5:10-cr-50110-TLB Document 258 Filed 05/07/15 Page 2 of 4 PageID #:
<pageID>

AO72A
(Rev. 8/82)
This Court should vacate the judgment that is void for want of jurisdiction of the
subject matter, where the plaintiff has wholly failed to meet its burden to
establish standing to sue. [Defendant] is a living man, not subject to the penalties
of constructive statutes such as Title 21, and the plaintiff has failed to show
“injury in fact,” “causation,” and/or “redressability” either as a threshold matter
or at any time during the prosecution, judgment and/or appeal . . . Unless
standing to sue is establish[ed] before a court proceeds to the merits of the
plaintiff’s claim[,] the trial court is deprived of jurisdiction of the subject matter
and the resultant judgment is void ab initio.
(Doc. 242 at pg. 12.)
DISCUSSION
A “second or successive” §2255 motion may not be filed absent certification by the
Eighth Circuit, authorizing the district court to consider the successive motion. See 28 U.S.C.
§2244(b)(3)(a); 28 U.S.C. § 2255(h). An inmate may not bypass this requirement by purporting
to invoke some other procedure, such as a Rule 60(b) motion . See United States v. Lambros,
404 F.3d 1034, 1036 (8 Cir. 2005); Boyd v. United States, 304 F.3d 813, 814 (8 Cir. 2002)th th
(per curiam) (if Rule 60(b) motion is actually successive habeas petition, court should dismiss
it for failure to obtain authorization from court of appeals, or in its discretion, transfer motion
to court of appeals); Franqui v. Florida, 638 F.3d 1368, 1372-74 (11 Cir. 2011) (concludingth
Rule 60(b) motion in fact was an unauthorized successive § 2255 motion). Defendant’s claim
that his criminal judgment should be vacated for lack of subject matter jurisdiction is a claim he
could have pursued in his original § 2255 motion. See 28 U.S.C. § 2255(a) (a prisoner claiming
that the court was without jurisdiction may move the court which imposed the sentence to vacate
or set aside the sentence). Because Defendant’s Rule 60(b) motion is the functional equivalent
of an unauthorized successive § 2255 motion, the undersigned recommends that it be
-3-
Case 5:10-cr-50110-TLB Document 258 Filed 05/07/15 Page 3 of 4 PageID #:
<pageID>

AO72A
(Rev. 8/82)
DISMISSED for lack of jurisdiction. See United States v. Hines, 513 Fed. Appx. 633, 633 (8th
Cir. 2013); Boykin v. United States, 2000 WL 1610732, at *1 (8th Cir.2000).
CONCLUSION
Based upon the forgoing, the undersigned recommends that the instant motion (Doc.
242), which the undersigned construes to be a successive motion under 28 U.S.C. § 2255, be
dismissed with prejudice for lack of jurisdiction.
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 7th day of May, 2015.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
-4-
Case 5:10-cr-50110-TLB Document 258 Filed 05/07/15 Page 4 of 4 PageID #:
<pageID>