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United States v. Vazquez-Martinez

United States District Court, D. Kansas

December 1, 2017




         This matter is before the Court on Defendant Indelfonso Vazquez-Martinez 's pro se Motion for Resentencing (Doc. 144). For the reasons explained in detail below, the Court dismisses Defendant's motion as an unauthorized second or successive motion under 28 U.S.C. § 2255.

         I. Background

         On April 23, 2008, Defendant pled guilty to Counts 2 through 6 of a six-count Indictment charging him with possession with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1).[1] The Presentence Investigation Report (“PSR”) calculated Defendant's base offense level at 36, as the offense involved 11.91 kilograms of methamphetamine.[2] Defendant also received a two-point enhancement for possession of a firearm, [3] and a four-point enhancement for his role in the offense.[4] Defendant's criminal history was category I, and this Court sentenced Defendant to 262 months' imprisonment on each count, to be served concurrently.[5] This sentence was subsequently reduced to 210 months under Amendment 782 to the Sentencing Guidelines.[6]

         The Tenth Circuit Court of Appeals granted the government's motion to enforce the appeal waiver in the plea agreement and dismissed Defendant's direct appeal.[7] Defendant filed his first motion to vacate sentence under 28 U.S.C. § 2255 on August 6, 2009, [8] which this Court denied on December 23, 2009.[9] Defendant subsequently filed the instant motion seeking resentencing in the wake of the Supreme Court's decision in Johnson v. United States.[10]

         II. Discussion

         Defendant does not mention the federal habeas statute-28 U.S.C. § 2255-in his motion. Nevertheless, because of the nature of the relief that Defendant seeks, the Court construes his motion as a request for § 2255 habeas relief.[11] There is no question this is Defendant's second or successive motion.

         A federal prisoner seeking authorization to file a second or successive § 2255 motion must demonstrate that his claims are based on either “newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the defendant guilty of the offense, ” or “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.”[12]

         For purposes of § 2255(h)(2), the Johnson decision constitutes a new rule of constitutional law that was made retroactive to cases on collateral review in Welch v. United State.[13] Because Defendant's first § 2255 proceeding was denied on the merits, in order to file a second or successive motion raising a Johnson claim, he must first obtain an order from the Tenth Circuit authorizing this Court to consider a second or successive § 2255 motion.[14] In the absence of such authorization, the district court lacks jurisdiction to consider the merits of a claim asserted in a second or successive § 2255 motion.[15]

         The district court may transfer a successive § 2255 motion to the Tenth Circuit, rather than dismiss the motion for lack of jurisdiction, if a transfer is in the interest of justice.[16] Factors for considering whether a transfer is in the interest of justice include:

whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.[17]

         Defendant has not obtained authorization from the Tenth Circuit to file a second or successive § 2255 motion. Consequently, this Court must either dismiss the § 2255 motion for lack of statutory jurisdiction or, if it is in the interest of justice, transfer the matter to the Tenth Circuit pursuant to 28 U.S.C. § 1631.

         Defendant is currently serving a term of imprisonment of 210 months due to a drug trafficking conviction. Relevant here, the Guideline sentence tied to that conviction was enhanced two levels under U.S.S.G. § 2D1.1(b)(1) because Defendant possessed a firearm. In Johnson, the Supreme Court declared unconstitutionally vague a part of the Armed Career Criminal Act's (“ACCA”) definition of “violent felony, ” referred to as the “residual clause.”[18]Because Defendant was not sentenced as a career offender under the ACCA, however, his sole ground for relief is that the firearm enhancement under § 2D1.1(b)(1) is invalid in light of Johnson.

         This claim is without merit, as Johnson and its progeny have no effect on the two-point enhancement. Defendant's motion can be granted only under circumstances where the Supreme Court finds that the advisory Federal Sentencing Guidelines are subject to scrutiny on vagueness grounds and that Johnson in turn applies retroactively to the Guidelines. In Beckles v. United States, however, the Court held that “the Guidelines are not subject to a vagueness challenge under the Due Process Clause.”[19] Consequently, Johnson does not provide a retroactive gateway for Defendant to challenge his sentence. Accordingly, because Defendant's motion is founded on a vagueness challenge to a sentence imposed under the advisory Guidelines, ...

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