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Roybal v. United States

United States District Court, D. New Mexico

June 30, 2017

GEORGE ROYBAL, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          George Roybal FCI-La Tuna Anthony, New Mexico Defendant/Movant Pro Se

          James Tierney Acting United States Attorney Cynthia L. Weisman Joel R. Meyers Shana B. Long Stephen R. Kotz Assistant United States Attorneys Albuquerque, New Mexico Attorneys for the Respondent/Plaintiff United States of America

          MEMORANDUM OPINION AND ORDER OF DISMISSAL

         THIS MATTER comes before the Court, under rule 4(b) of the Rules Governing Section 2255 Proceedings, on the Movant's Motion Pursuant to 28 U.S.C. Section 2255 in Light of Retroactivity of Quintero-Leyva, 2016 WL 2865713 (9th Cir. 2016), filed September 23, 2016 (CIV Doc. 1; CR Doc. 1141)(“§ 2255 Motion”). The Court determines that Movant George Roybal is not entitled to relief and will dismiss the Motion as rule 4(b) provides.

         On December 12, 2012, Roybal and several co-Defendants were charged under a multi-count Indictment. See Indictment, filed December 12, 2012 (CR Doc. 2). Roybal was charged with: (i) Conspiracy in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) (Count 1); (ii) Distribution of Cocaine in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) (Count 5); (iii) Distribution of Marijuana in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(D) (Count 15); (iv) Conspiracy to Launder Money in violation of 18 U.S.C. § 1956(h) (Count 37); and (v) Use of a Telephone to Facilitate a Drug Trafficking Offense in violation of 21 U.S.C. § 843(b) (Counts 42 and 43). See Indictment at 1. In a Superseding Indictment and a Second Superseding Indictment, Roybal was charged with an additional count of Witness Tampering, in violation of 18 U.S.C. § 1512(a)(1)(A) (Count 62). See Superseding Indictment at 1, filed February 12, 2014 (CR Doc. 426); Second Superseding Indictment at 1, filed September 9, 2014 (CR Doc. 626). Roybal entered into a rule 11(c)(1)(C) Plea Agreement, filed January 14, 2015 (CR Doc. 735), and pled guilty to Count 1 (Conspiracy to Distribute Cocaine) and Count 61 (Witness Tampering). See Plea Agreement at 4-5. On November 17, 2015, the Court sentenced him to 97 months of incarceration with three years of supervised release. See Judgment, filed November 17, 2015 (CR Doc. 1070). Presumably based on the Plea Agreement's appellate review waiver, Roybal did not appeal his sentence. See Plea Agreement at 9.

         Following entry of the Judgment, Roybal filed a Motion to Reduce Sentence under 28 U.S.C. § 3582. See RE: Two Point Reduction, filed May 16, 2016 (CR Doc. 1130)(“Reduction Motion”). In his Reduction Motion, Roybal seeks a 2-level reduction based on retroactive application of U.S.S.G. Amendment 782. See Reduction Motion at 1-3. The Reduction Motion is currently pending before the Court. Roybal then filed his pro se § 2255 Motion. In his § 2255 Motion, Roybal argues that he is entitled to a sentence reduction based on retroactive application of Amendment 794 to Section 3B1.2 of the United States Sentencing Guidelines. See § 2255 Motion at 1-2.

         APPLICABLE LAW ON SECTION 2255 COLLATERAL REVIEW AND RETROACTIVE APPLICATION OF SENTENCING GUIDELINE AMENDMENTS

         Roybal seeks collateral review of his sentence under 28 U.S.C. § 2255. Section 2255 provides:

A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). The defendant is to file the initial motion under § 2255 with the court that imposed the sentence, for that court's consideration. See In re Hanserd, 123 F.3d 922, 925 (6th Cir. 1997)(discussing differences between § 2255 motions and traditional habeas petitions); Browning v. United States, 241 F.3d 1262, 1264 (10th Cir. 2001). Rule 4(b) of the Rules Governing Section 2255 Proceedings states:

The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party.

Under rule 4 of the Rules Governing Section 2255 cases, the Court is under an obligation to review a § 2255 motion, and to summarily dismiss the motion if the filings and the record in the movant's underling criminal proceeding establish that the movant is clearly not eligible for relief.

         Rule 4(b) of the Rules Governing Section 2255 Proceedings.

         Roybal grounds his request for § 2255 relief on Amendment 794 to the Sentencing Guidelines. Arguments grounded on amendments to the Guidelines are ordinarily brought under 18 U.S.C. § 3852 and not as § 2255 claims. See United States v. Jones, 143 F.Appx. 526, 527 (4th Cir. 2005)(holding it error to construe the petitioners' reduction-of-sentence motions based on retroactive application of Guidelines Amendment as § 2255 motions); Ono v. Pontesso, 1998 WL 757068, at *1 (9th Cir. 1998)(holding that request for a modification of a sentence pursuant to a Guidelines amendment “is most properly brought as a motion under 18 U.S.C. § 3582”); United States v. Mines, 2015 WL 1349648, at *1 (E.D. Va. 2015)(where petitioner “seeks a reduction in sentence pursuant to any amendment to the United States Sentencing Guidelines, he must file a separate motion for reduction of sentence pursuant to 18 U.S.C. § 3582”).

         Roybal has a § 3582 Motion to Reduce Sentence pending based on a different amendment to the Sentencing Guidelines. See Reduction Motion at 1-3. Rather than amending his Reduction Motion, Roybal has chosen to bring this proceeding, asserting retroactive application of Amendment 794 under § 2255. See § 2255 Motion at 1. Under the United States Court of Appeals for the Tenth Circuit's precedent, only those amendments that are explicitly enumerated in § 3582(c)(2) are deemed to be retroactive. See United States Sentencing Guidelines Manual § 1B1.10(a)(2); United States v. Avila, 997 F.2d 767, 768 (10th Cir. 1993). Amendment 794 is not such an enumerated amendment. See United States v. Harrison, 2016 WL 6310768, *2 (N.D. Okla. 2016)(“Amendment 794 is not retroactive under the sentencing guidelines, federal statutes, or Tenth Circuit precedent.”); United States v. Fouse, 2016 WL ...


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