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
V. NO. 10-50110-002
AMADO CORREA-SANTOS DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Currently before the Court is Defendant Amado Correa-Santos’ 28 U.S.C. § 2255 motion.
(Doc. 281.) For the reasons stated below, the undersigned recommends that the motion be
denied.
On April 3, 2011, Defendant pled guilty to an information charging him with conspiring
to distribute methamphetamine, in violation of 21 U.S.C. § § 841(a) and 846. (Doc. 120.) On
August 5, 2011, Defendant was sentenced to 240 months imprisonment. (Doc. 137.) Defendant
successfully moved for relief under 28 U.S.C. § 2255 based on his trial counsel’s failure to file
a direct appeal. See United States v. Correa-Santos, Crim. No. 10-50110-002, 2013 WL
6669411, (W.D. Ark. Dec. 18, 2013). Defendant’s sentence was vacated, and, on March 10,
2014, he was resentenced to 240 months imprisonment. (Doc. 230.) Defendant’s sentence was
affirmed on appeal on May 8, 2015. See United States v. Correa-Santos, 785 F.3d 307 (8 Cir.th
2015).
In the motion now before the Court, Defendant argues that he should not have received
an enhancement for being an organizer or leader of the criminal activity and that he is entitled
to a minor role reduction in his sentence. Defendant bases his argument on Amendment 794 to
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the United States Sentencing Guidelines, which modified the commentary to Sentencing
Guideline § 3B1.2 to address inconsistencies in the application of the guideline and to provide
the district courts with additional guidance in determining whether they should grant minor role
adjustments. Amendment 794 took effect on November 1, 2015, after Defendant was sentenced.
Defendant cites the Ninth Circuit case of United States v. Quintero-Leyva, 823 F.3d 519 (9 Cir.th
2016), which held that Amendment 794 applied retroactively to cases on direct appeal.
It appears that the motion filed by the Defendant is a type of form motion that is being
filed by inmates throughout the Bureau of Prisons. The motion has been uniformly denied as
without merit by district courts across the country. See e.g., United States v. Hunley, Nos.
7:14CR00050, 7:16CV81151, 2016 WL 4523417 (W.D. Va. Aug. 26, 2016); Griselda Ruiz-Loya
v. United States, Nos. EP-16-CV-405-KC, EP-CR-304-KC-1, 2016 WL 5717881 (W.D. Tex.
Sept. 30, 2016); United States v. Juana Reyes-Cordova, No. 15-CR-0087, 2016 WL 5348575 (D.
Minn. Sept. 23, 2016); United States v. Yanez, Nos. 13cr3515-LAB-1, 16cv1964-LAB, 2016
WL 4248541 (S.D. Cal. Aug. 11, 2016); Sandidge v. United States, No. 16-cv-00871-JPG (S.
D. Ill. Aug. 5, 2016).
As held by these other courts, Defendant is not entitled to relief under § 2255, as he is
not asserting any grounds for relief cognizable under § 2255(a). Section 2255(a) authorizes a
sentencing court to “vacate, set aside or correct” a sentence that was “imposed in violation of the
Constitution or laws of the United States.” 28 U.S.C. § 2255(a). The claimed violation must be
a fundamental defect which inherently results in a complete miscarriage of justice. Gray v.
United States, No. 15-3223, 2016 WL 4363164, at *3 (8 Cir. Aug. 16, 2016). Anything lessth
is not cognizable under § 2255. Id. As held by other courts that have addressed § 2255 motions
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predicated upon Amendment 794, claims for a reduction in sentence based on the retroactive
application of amendments to the guidelines are not cognizable under § 2255. See Hunley, 2016
WL 4523417, at * 1; Ruiz-Loya, 2016 WL 5717881, at *3; Yanez, 2016 WL 4248541, at *1;
Sandidge, 2016 WL 4154929, at *2.
The type of claim brought by Defendant must be brought under 18 U.S.C. § 3582. See
id. Even construing Defendant’s motion as seeking a sentencing reduction under § 3582,
however, he is not entitled to relief, as the United States Sentencing Commission did not make
Amendment 794 retroactive to all cases. See id.; USSG § 1B1.10(d) (2015) (listing retroactive
guideline amendments). Defendant’s reliance on Quintero-Leyva , a Ninth Circuit case which
is not binding on this Court, is misplaced, as Quintero-Leyva did not make Amendment 794
retroactively applicable to cases on collateral review, but only to cases on direct review.
Based upon the forgoing, the undersigned recommends that Defendant’s § 2255 motion
(Doc. 281) be DISMISSED WITH PREJUDICE.
An appeal may not be taken in this matter unless the Court issues a certificate of
appealability, which shall be issued only if "the applicant has made a substantial showing of the
denial of a constitutional right." 28 U.S.C. § 2253(b) & (c)(2). A "substantial showing" is a
showing that “issues are debatable among reasonable jurists, a court could resolve the issues
differently, or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8 Cir.th
1997), cert. denied, 525 U.S. 834 (1998). Based upon the above analysis of Defendant’s § 2255
motion, the undersigned does not believe that there is any basis for the issuance of a certificate
of appealability and, therefore, recommends, that a certificate of appealability be denied.
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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 11 day of October, 2016.th
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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