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United States v. Beltran

United States District Court, D. New Mexico

April 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
HORTENCIA LOZANO DE BELTRAN, 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 Hortencia Lozano De Beltran'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 1, 2016. [CV Doc. 1; CR Doc. 1412] Also before the Court is Defendant's Motion For Appointment of Counsel, filed on February 6, 2017. [CV Doc. 3] 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, Defendant's Motion For Appointment of Counsel will be denied as moot, a certificate of appealability will be denied, and judgment will be entered.

         I. BACKGROUND

         Defendant was charged in a Second Superseding Indictment with: (1) Count 1-conspiracy to possess with intent to distribute cocaine, methamphetamine, and marijuana in violation of 21 U.S.C. § 846; (2) Count 3-distribution of 500 grams and more of cocaine in violation of 21 U.S.C. §§ 84(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (3) Count 7-possession with intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (4) Count 8-use of a person under eighteen years of age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in the possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (5) Count 11-distribution of 500 grams and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (6) Count 14-possession with intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (7) Count 17-possession with intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (8) Count 18-use of a person under eighteen years of age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in the possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (9) Count 21-distribution of 500 grams and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (10) Count 22-use of a person under eighteen years of age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in the distribution of cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (11) Count 25-possession with intent to distribute 500 grams and more cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (12) Count 26-use of a person under eighteen years of age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in the possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (13) Count 27-possession with intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (14) Count 28-use of a person under eighteen years of age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in the possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (15) Count 29-distribution of 500 grams and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; (16) Count 30-use of a person under eighteen years of age to commit a drug trafficking offense and to assist in avoiding detection or apprehension in the distribution of cocaine in violation of 21 U.S.C. §§ 861(a)(1) and (a)(2); (17) Count 36-possession with intent to distribute 500 grams and more of cocaine in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2. [CR Doc. 550] Pursuant to a plea agreement, Defendant agreed to plead guilty to Counts 1, 3, 7, 8, 11, 14, 17, 18, 21, 22, 25, 26, 27, 28, 29, 30, and 36 of the Second Superseding Indictment. [CR Doc. 700] Defendant also waived “the right to appeal a conviction and the sentence imposed” and agreed “to waive any collateral attack to the defendant's conviction pursuant to 28 U.S.C. § 2255, except on the issue of counsel's ineffective assistance in negotiating or entering into” the plea agreement or waiver. [CR Doc. 700 at 10]

         The Court accepted Defendant's guilty plea and the plea agreement and sentenced Defendant to 135 months of imprisonment on each count of the Second Superseding Indictment, said terms to run concurrently, for a total term of 135 months of imprisonment.[1] [CR Docs. 1267; 1274] Additionally, the Court imposed eight years of unsupervised release as to each count of the Second Superseding Indictment, said terms to run concurrently, for a total term of eight years of unsupervised release.[2] [CR Docs. 1267; 1274] The Court rendered judgment on Defendant's conviction and sentence on November 8, 2012. [CR Doc. 1274] Defendant did not file a notice of appeal.

         On August 1, 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 is “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. 1412 at 4] On February 6, 2017, Defendant filed a motion for appointment of counsel, “requesting an attorney to proceed with [her] minor role motion.” [CV Doc. 3]

         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 November 22, 2012--fourteen days after entry of 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 Defendant's ...


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