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United States v. Garcia

United States District Court, D. Nebraska

November 2, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
YARA SUJEY MARTINEZ GARCIA, Defendant.

          MEMORANDUM AND ORDER

          John M. Gerrard, United States District Judge.

         This matter is before the Court upon initial review of the pro se motion to vacate under 28 U.S.C. § 2255 (filing 543) filed by the defendant, Yara Sujey Martinez Garcia. The Court's initial review is governed by Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, which provides:

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. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.

         A § 2255 movant is entitled to an evidentiary hearing unless the motion and the files and records of the case conclusively show that the movant is entitled to no relief. § 2255(b); Sinisterra v. United States, 600 F.3d 900, 906 (8th Cir. 2010). Accordingly, a motion to vacate under § 2255 may be summarily dismissed without a hearing if (1) the movant's allegations, accepted as true, would not entitle the movant to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact. Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995); see also Sinisterra, 600 F.3d at 906.

         BACKGROUND

         The defendant was convicted, pursuant to a guilty plea, of conspiracy to distribute methamphetamine in violation of 21 U.S.C. § 846. The presentence report found that the defendant was a minor participant in the offense, warranting a 2-level reduction in her offense level. Filing 260 at 8. Based on the presentence report, the Court found that the defendant's applicable sentencing range under the Sentencing Guidelines was 121 to 151 months, but varied downward on the defendant's motion and imposed a sentence of 120 months' imprisonment. Filing 262 at 1; filing 263 at 1, 3. The defendant moves to vacate that sentence pursuant to § 2255, contending that she was "a minor role in this case." Filing 543.

         DISCUSSION

         The defendant's sole argument is that she should receive a reduction in her offense level pursuant to U.S.S.G. § 3B2.1, based on her allegedly minor participation in the offense. Filing 543. Her argument is premised on U.S.S.G. Amend. 794: that amendment, which was effective on November 1, 2015, made no change to the text of § 3B1.2. Instead, it made changes and additions to the commentary to § 3B1.2, to provide additional guidance to courts in determining whether a mitigating role adjustment applies. And Amendment 794 was not made retroactive to defendants who had already been sentenced. See, 18 U.S.C. § 3582(c)(2); U.S.S.G. § 1B1.10(d); see also United States v. Hernandez, 18 F.3d 601, 602 (8th Cir. 1994).

         The defendant's argument for vacating her sentence based on Amendment 794 is without merit, for several reasons. First, the defendant's motion is untimely. A § 2255 motion must be filed within 1 year 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.

ยง 2255(f). Judgment was entered in this case on May 12, 2014, see filing 262, and became final when the time for taking an appeal ran: far more than 1 year before her October 31, 2016 motion, see filing 543. And none of the other provisions for ...


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