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United States v. Anguiano

United States District Court, D. New Mexico

April 3, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
VERONICA ANGUIANO, Defendant.

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         This matter is before the Court, sua sponte under rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, on Defendant Veronica Anguiano's Motion For Minor Role Adjustment And Sentence Reduction Based On United States v. Quintero-Leyva And Pursuant To Amendment 794 And 28 U.S.C. § 2255, filed on August 9, 2016. [CV Doc. 1; CR Doc. 107] For the reasons explained below, the Court concludes that Defendant's § 2255 motion is untimely under § 2255(f) and, therefore, Defendant's § 2255 motion will be dismissed with prejudice, a certificate of appealability will be denied, and judgment will be entered.

         I. BACKGROUND

         Defendant was charged by Indictment with: (1) Count 1-conspiracy to possess with intent to distribute 500 grams and more of methamphetamine in violation of 21 U.S.C. § 846; and (2) Count 2-possession with intent to distribute 500 grams and more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. [CR Doc. 30] Pursuant to a plea agreement, Defendant plead guilty to Count 2 of the Indictment charging her with possession with intent to distribute 500 grams and more of methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2. [CR Doc. 73] Additionally, Defendant agreed to waive “the right to appeal the Defendant's conviction(s) and any sentence and fine within or below the applicable advisory guideline range as determined by the Court” and to waive “any collateral attack to the Defendant's conviction(s) pursuant to 28 U.S.C. § 2255, except on the issue of counsel's ineffective assistance in negotiating or entering” the plea agreement or waiver. [CR Doc. 73 at 7]

         The Court accepted Defendant's guilty plea and the plea agreement and sentenced Defendant to 96 months of imprisonment in the custody of the Bureau of Prisons and 15 years of unsupervised release. [CR Docs. 86, 87] The Court rendered judgment on Defendant's conviction and sentence on July 15, 2013, followed by an amended judgment on July 26, 2013. [CR Doc. 87, 88] Defendant did not file a notice of appeal.

         On August 9, 2016, Defendant filed the present Motion For Minor Role Adjustment And Sentence Reduction Based On United States v. Quintero-Leyva And Pursuant To Amendment 794 And 28 U.S.C. § 2255. In her motion, Defendant seeks a reduction of her sentence pursuant to Amendment 794 of the United States Sentencing Guidelines (U.S.S.G.), which amended the commentary to U.S.S.G. § 3B1.2 to provide “additional guidance to sentencing courts in determining whether a mitigating role adjustment applies.” See United States Sentencing Guidelines Manual, Supplement to Appendix C, Amend. 794 (2016). Specifically, the amendment “provides a non-exhaustive list of factors for the court to consider in determining whether an adjustment applies and, if so, the amount of the adjustment.” Id. Pursuant to these factors, and the holding of the United States Court of Appeals for the Ninth Circuit in United States v. Quintero-Leyva, 823 F.3d 519 (9th Cir. 2016), Defendant contends that she was “not as culpable as the other participants in the criminal activity” and requests “the proper reduction and resentence accordingly.” [CV Doc. 1 at 4; CR Doc. 107 at 4]

         II. DISCUSSION

         As a preliminary matter, the Court will consider the timeliness of Defendant's § 2255 motion. See United States v. DeClerck, 252 F. App'x 220, 224 (10th Cir. 2007) (noting that “federal district courts are ‘permitted, but not obliged' to review, sua sponte, a federal prisoner's § 2255 motion to determine whether it has been timely filed”) (unpublished) (quoting Day v. McDonough, 547 U.S. 198, 209 (2006)).

         A. Timeliness of Defendant's § 2255 Motion

         Title 28 of the United States Code, section 2255(f)(3) imposes a “1-year period of limitation” on § 2255 motions, which begins to run on the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

§ 2255(f)(3). Defendant did not appeal the judgment of conviction and, therefore, it became final on August 9, 2013-fourteen days after entry of the amended judgment. See United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006) (“If the defendant does not file an appeal, the criminal conviction becomes final upon the expiration of the time in which to take a direct criminal appeal.”); Fed. R. App. P. 4(b)(1)(A)(i) (“In a criminal case, a defendant's notice of appeal must be filed in the district court within 14 days after . . . the entry of . . . the judgment”). Because ...


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