United States District Court, D. Nebraska
MEMORANDUM AND ORDER
F. BATAILLON, SENIOR UNITED STATES DISTRICT JUDGE
matter is before the court on defendant Lazaro
Medina-Ayon's purported motion for a downward departure,
Filing No. 130. In his pro se motion,
Medina-Ayon seeks a two level downward departure from his
base offense level due to his status as deportable alien,
arguing that he is prevented from benefiting from certain
Bureau of Prisons programs (i.e., a community treatment
center, halfway house, or work release) due to his status as
an alien. He argues that otherwise similarly situated United
States citizens are treated differently, in violation of the
Equal Protection Clause of the Fourteenth Amendment.
court construes the defendant's pleading liberally, as he
is proceeding pro se. Estelle v. Gamble,
429 U.S. 97, 106 (1976). Even when liberally construed,
however, the court finds it lacks the authority to modify
Medina-Ayon's sentence. Under 18 U.S.C. § 3582(c)(2)
a court is allowed to modify a sentence only if the defendant
was sentenced according to a sentencing range that was later
reduced by the Sentencing Commission pursuant to §
994(o). That scenario is not consistent with the facts of
Medina-Ayon's case. Further, § 3582(c)(1) allows the
court to modify a sentence only upon a motion of the Director
of the Bureau of Prisons (BOP), which is again not the case
here. Section 3553 pertains to the initial imposition of a
sentence, and does not empower a court to later reduce a
the court does not have the power to grant Medina-Ayon's
motion even when considering the broader range of relevant
rules and laws. As discussed below, Medina-Ayon has not
stated a claim for a violation of his constitutional rights
or of federal law, and as such has not invoked 28 U.S.C.
§§ 2241 or 2255. Even if the court were to construe
the motion as a habeas corpus petition arising under one of
those provisions, the motion would have to be denied on the
the Rules Governing Section 2255 Proceedings for the United
States District Courts (“2255 Rules”), the court
would have to perform an initial review of the
defendant's § 2255 motion. See 28 U.S.C.
§ 2255, Rule 4(b). The rules provide that “[i]f 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 court must dismiss the
motion. Id. Further, unless the record
“conclusively shows” that he is not entitled to
relief, Medina-Ayon would be entitled to an evidentiary
hearing on his § 2255 motion. See United States v.
Regenos, 405 F.3d 691, 694 (8th Cir. 2005). For the
reasons discussed below, the court would find that it plainly
appears, and the record conclusively shows, that Medina-Ayon
is not entitled to relief.
it appears that Medina-Ayon's habeas corpus petition
would be untimely. Under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), there is a one-year
statute of limitations on motions by prisoners seeking to
modify, vacate or correct their federal sentences.
Johnson v. United States, 544 U.S. 295, 299
(2005). Generally, that year begins to run from
“the date on which the judgment of conviction becomes
final.” 28 U.S.C. § 2255 (f)(1). When a defendant
does not file an appeal, his conviction becomes final when
the period in which to file an appeal expires.
Anjulo-Lopez v. United States, 541 F.3d 814, 816
(8th Cir. 2008). In a criminal case, a notice of appeal must
be filed within 14 days of the entry of judgment or of the
filing of the government's notice of appeal. Fed. R. App.
P. 4(b)(1)(A)(i) & (ii). The record shows that judgment
was entered against Medina-Ayon on June 18, 2009. Filing
No. 74. He filed a notice of appeal on October 7, 2010.
Filing No. 84. The appeal was dismissed as untimely.
Filing No. 93 and Filing No. 96.
the record shows that Medina-Ayon waived his rights to
challenge his sentence in his plea agreement. The defendant
was sentenced to a ten-year mandatory minimum sentence on a
drug trafficking charge and to a consecutive five-year
mandatory minimum sentence for carrying a firearm in
connection with the drug trafficking offense pursuant to a
plea agreement that contained a waiver of his rights to
appeal or otherwise challenge his conviction or sentence.
Filing No. 62, Plea Agreement at 6. The record also
shows that Medina-Ayon did not move for any downward
departures before he was sentenced. Filing No. 75,
Statement of Reasons (sealed).
does not argue that the waivers in his plea agreement are
invalid or should not be enforced. The United States Court of
Appeals for the Eighth Circuit allows criminal defendants to
waive their appellate and post-conviction rights. See
United States v. Andis, 333 F.3d 886, 887 n. 2 (8th
Cir.2003) (en banc). The Supreme Court of the United States
has stated that allowing “indiscriminate hearings in
federal post-conviction proceedings . . . for federal
prisoners under 28 U.S.C. § 2255 . . . would eliminate
the chief virtues of the plea system speed, economy, and
finality.” Blackledge v. Allison, 431 U.S. 63,
71 (1977). Although there are narrow exceptions to the
enforceability of such waivers, see Andis, 333 F.3d
at 891-92, none appear to be at issue here.
he had not waived his rights to challenge his sentence,
Medina-Ayon's argument that he is entitled to a downward
departure based on the “collateral consequences”
of his status as a deportable alien is foreclosed by the
Eighth Circuit Court of Appeals' decisions in United
States v. Rodriguez, 29 Fed.Appx. 406, 407 (8th Cir.
2002); United States v. Lopez-Salas, 266 F.3d 842
(8th Cir. 2001) (holding that the collateral consequences
flowing from the fact of being a deportable alien are not
generally sufficient to justify a departure from the
sentencing guidelines absent a showing of some additional
facts concerning the defendant's individual circumstances
that make the particular case atypical or unusual). Moreover,
a Guidelines departure is not relevant to Medina-Ayon's
case since he was not sentenced under the Guidelines, but
received statutory mandatory minimum consecutive sentences.
the court finds on the merits that Medina-Ayon does not
present any claim on which the court could grant a sentence
reduction. Section 2255 movants may collaterally attack their
sentences on four recognized grounds for relief: (1) the
sentence was imposed in violation of the Constitution or laws
of the United States, (2) the court was without jurisdiction
to impose the sentence, (3) the sentence was in excess of
that authorized by law, and (4) the sentence is otherwise
subject to collateral review. 28 U.S.C. §
2255(a); Rule 1, 28 U.S.C. foll. § 2255, (Rules
Governing § 2255 Proceedings for the United States
District Courts). Medina-Ayon appears to assert his motion
under the first of these, stating that his sentence violated
equal protection constitutional guarantees.
limited argument demonstrates that he is not challenging the
sentence itself, but rather its execution-disqualification
from certain placements and programs. Such claims are not
properly raised under § 2255; but they may be raised
under 28 U.S.C. § 2241. United States v.
Tamayo, 162 Fed.Appx. 813, 815 (10th Cir. 2006)
(confirming that “collateral consequences of deportable
alien status . . . do not provide grounds for a downward
departure of a defendant's sentence” under §
2255, but stating that such claims may be properly brought
under § 2241 because they challenge the execution of a
court, however, would not have jurisdiction over such a
motion. Section 2241 motions must be filed in either the
district in which a prisoner is incarcerated, in the District
of Washington, D.C., or in any district in which the Bureau
of Prisons maintains a regional office. McCoy v. United
States Bd. of Parole, 537 F.2d 962, 964, 965-67 (8th
Cir.1976). Medina-Ayon is incarcerated in Mississippi
and the Bureau of Prisons does not maintain a regional office
in this district. See Federal Bureau of Prisons
(last accessed May 19, 2017).
defects that arise when a suit is filed in the wrong federal
district may be cured by transfer under the federal transfer
statute, which requires a court to transfer such an action if
the transfer is in the interest of justice.” 28 U.S.C.
§ 1631; see Tamayo, 162 Fed.Appx. at 815.
“However, ‘a court is authorized to consider the
consequences of a transfer by taking a peek at the merits to
avoid raising false hopes and wasting judicial resources that
would result from transferring a case which is clearly
doomed.'” Id. at 815-16 (quoting Haugh
v. Booker, 210 F.3d 1147, 1150 (10th Cir. 2000)
(internal quotations omitted). The court's consideration
of the merits leads to the finding that Medina-Ayon's
request for relief is unavailing.
the court could consider the motion under § 2241, such a
motion would have to be denied. An equal protection claim
based on the argument that status as a deportable alien
causes a defendant to serve his sentence under circumstances
more severe than those facing citizens of the United States
does not provide the basis for an equal protection claim.
See Tamayo, 162 Fed.Appx. at 816 (finding that
denying deportable aliens the opportunity to participate in
certain pre-release programs does not violate equal
protection). “[T]here is a rational basis to deem
deportable aliens, who will be sent out of the country ...