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United States v. Carter

United States District Court, D. Kansas

February 21, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
RIKO CARTER, Defendant. Civil Action No. 16-2598-KHV

          MEMORANDUM AND ORDER

          SCOTT W. SKAVDAHL, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on defendant's Motion To Vacate, Set Aside, Or Correct Sentence Under 28 U.S.C. § 2255 By U.S.S.G. Amendment § 3B1.2 (ECF No. 1971). On October 14, 2016, the government filed a response. See Government's Response To Defendant's Motion To Vacate, Set Aside Or Correct Sentence Under 28 U.S.C. § 2255 By U.S.S.G. Amendment § 3B1.2 (ECF No. 1981). Defendant did not file a reply. For reasons stated below, the Court overrules defendant's motion.

         BACKGROUND

         On October 3, 2012, a grand jury charged Riko Carter and 51 other defendants with conspiracy to manufacture, to possess with intent to distribute and to distribute 280 grams or more of cocaine base and to possess with intent to distribute and to distribute five kilograms or more of a mixture and substance containing cocaine. See Second Superseding Indictment (ECF No. 402), Count 1. On May 28, 2013, Mr. Carter pled guilty. See Plea Agreement (ECF No. 671).

         At sentencing, the Court calculated a base offense level of 34 under U.S.S.G. § 2D1.1 based on a drug quantity of 2.75 kilograms of cocaine base. See Presentence Investigation Report (ECF No. 1131), ¶¶ 96, 100-01 (base offense level 34 for offense involving at least 840 grams but less than 2.8 kilograms of cocaine base under 2013 version of Guidelines). The Court added three levels under U.S.S.G. § 2D1.1(b)(1) because defendant possessed a dangerous weapon during the offense. See id., ¶ 102. The Court then subtracted three levels for defendant's acceptance of responsibility. See id., ¶¶ 108-09. Based on a criminal history category IV and a total offense level of 33, defendant's advisory guideline range was 188 to 235 months. See id., ¶ 152.

         On May 12, 2014, the undersigned judge, sitting by designation, sentenced Mr. Carter to 188 months in prison. See Judgment In A Criminal Case (ECF No. 1524) at 2. On June 8, 2015, in light of Amendment 782 to the Sentencing Guidelines, which reduced by two levels defendant's base offense level, the Honorable Kathryn H. Vratil reduced defendant's sentence to 151 months. See Order Regarding Motion For Sentence Reduction Pursuant To 18 U.S.C. § 3582(c)(2) (ECF No. 1785).

         On August 29, 2016, defendant filed a motion to vacate his sentence under 28 U.S.C. § 2255. Defendant asserts that under Amendment 794 to the Sentencing Guidelines, the Court should apply a mitigating role adjustment under Section 3B1.2 and resentence him to a term of 120 months, the statutory minimum term of imprisonment.[1]

         DISCUSSION

         The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989).

         I. Procedural Bar - Timeliness Of Motion

         The government asserts that defendant's motion is untimely. See Government's Response To Defendant's Motion To Vacate, Set Aside Or Correct Sentence Under 28 U.S.C. § 2255 By U.S.S.G. Amendment § 3B1.2 (ECF No. 1981) at 3-5. Section 2255 provides a one-year period of limitation which runs from 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.

28 U.S.C. § 2255(f). Here, the Clerk entered judgment on May 12, 2014. Defendant did not appeal the judgment of conviction so it was final 14 days later on May 26, 2014. United States v. Prows, 448 F.3d 1223, 1227-28 (10th Cir. 2006) (if defendant does not file direct appeal, conviction becomes final upon expiration of time in which to take direct criminal appeal); Fed. R. App. P. 4(b) (defendant must file appeal within 14 days of entry of judgment). Therefore defendant had until May 26, 2015 to file a Section 2255 motion.

         Defendant filed his motion to vacate on August 29, 2016, more than one year after the statutory deadline. Defendant apparently attempts to invoke the tolling provision of Section 2255(f)(4). See (ECF No. 1971-1) at 4. Defendant suggests that until Amendment 794 clarified application of Section 3B1.2, he could not have known of his potential argument that he qualified for a minor role reduction. See Id. Amendment 794 supplements the Commentary to provide additional guidance to district courts in determining when a mitigating role adjustment applies under Section 3B1.2, but it did not provide an additional basis to reduce a defendant's offense level. See Amendment 794, Supp. to App. C (Nov. 1, 2015). Therefore defendant could have raised his argument under Section 3B1.2 well before the effective date of Amendment 794. In any event, the tolling provision of Section 2255(f)(4) refers to discovery of “facts” supporting a claim, “not a failure to appreciate the legal significance of those facts.” United States v. Collins, 364 F. App'x 496, 498 (10th Cir. 2010) (citing Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000)); see United States v. Hines, 592 F. App'x 755, 755 (10th Cir. 2015) (recent Supreme Court decision does not constitute newly discovered fact under Section ...


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