United States District Court, D. Kansas
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
case is before the court on defendant Elida Guadalupe
Herrera-Morales's pro se motion to vacate sentence
pursuant to 28 U.S.C. § 2255 (Doc. 391.) Defendant
claims that her sentence enhancement under U.S.S.G. §
2D1.1(b)(1), is unconstitutional in light of the United
States Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015) and related cases. For the
reasons set forth below, this court dismisses defendant's
September 21, 2011, defendant pleaded guilty to conspiracy to
distribute and possess with intent to distribute more than 5
kilograms of cocaine, in violation of 21 U.S.C. §§
846(b)(1)(A), 841(a)(1), and (b)(1)(A)(ii)(II).
Defendant's total offense level was calculated at
36-based on one 2-point enhancement for possessing a firearm
in connection with the conduct for which she was responsible,
under U.S.S.G. § 2D1.1(b)(1)-and a guideline range of
135 to 168 months. However, pursuant to Fed. R. Crim. P.
11(c)(1)(C), the parties recommended that defendant be
sentenced to a term of 144 months, which was adopted and
imposed by the court. Judgment was entered on January 9,
2012, and defendant did not file a direct appeal.
filed her § 2255 motion on June 20, 2016. Defendant
seeks collateral review well past one year after her
conviction became final. See 28 U.S.C. §
also defendant's second postconviction motion challenging
her sentence. Under 28 U.S.C. § 2255, federal prisoners
seeking to file a second or successive motion must first
obtain authorization from the court of appeals before the
district court can consider the motion. In re Cline,
531 F.3d 1249, 1250 (10th Cir. 2008). To obtain
authorization, the defendant must demonstrate that the motion
is based on a new constitutional rule or on newly discovered
evidence. United States v. Lara-Jiminez, 377 F.
App'x 820, 822 (10th Cir. 2010); 28 U.S.C. §
2255(h). When a second unauthorized § 2255 motion is
filed, the court has discretion to determine whether to
transfer the action to the circuit court or dismiss the
action without prejudice. See In re Cline, 531 F.3d
at 1251; see also 28 U.S.C. § 1631.
Tenth Circuit has provided guidance on determining when a
transfer would be in the interest of justice. In re
Cline, 531 F.3d at 1251. “A transfer is not in the
interest of justice when the claims raised in the successive
petition clearly do not meet the requirements set forth in 28
U.S.C. § 2255(h).” Lara-Jiminez, 377 F.
App'x at 822 (citing In re Cline, 531 F.3d at
1252). Section 2255(h) identifies two situations in which a
second or successive motion is certifiable: (1) certain newly
discovered evidence exists; or (2) certain new rules of
constitutional law have been announced.
court finds that it is without jurisdiction to consider
defendant's second § 2255 motion. See 28
U.S.C. § 2255(h) (federal courts do not have
jurisdiction to consider successive § 2255 motions
unless they are certified “by a panel of the
appropriate court of appeals”). The court further
finds that a transfer is not warranted because the two
aforementioned situations are not present. Another court in
this district noted that the offending residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e)(2)(B)(ii), is not found in §
2D1.1(b)(1)-thus, Johnson is not applicable. See
United States v. Romero, No. 05-20017-02-JWL, 2016 WL
4128418, at *1 (D. Kan. Aug. 3, 2016) (“The only
connection between Johnson and § 2D1.1(b)(1) is
that both concern unlawful possession of a firearm.”)
(quoting United States v. Munoz, 198 F.Supp.3d 1040,
1044 (D. Minn. 2016)). Additionally, the Supreme Court
recently held in Beckles v. United States, 137 S.Ct.
886, 890 (2017), that the advisory sentencing guidelines are
not subject to vagueness challenges under the due process
clause. Id. (holding that the residual clause under
U.S.S.G. § 4B1. 2(a)(2)-“defining a ‘crime
of violence' as an offense that ‘involves conduct
that presents a serious potential risk of physical injury to
another'”-was not unconstitutional.)
court therefore finds that it is not in the interest of
justice to transfer this claim to the Tenth Circuit. The
court dismisses defendant's motion without prejudice.
certificate of appealability is not warranted in this case
because reasonable jurists could not debate whether
“the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal citation
THEREFORE ORDERED that defendant Elida Guadalupe
Herrera-Morales's motion to vacate sentence pursuant to
28 U.S.C. § 2255 (Doc. 391) is dismissed.
FURTHER ORDERED that the court will not issue a certificate