Casares-Cuevas v. United States

1 2 3 UNITED STATES DISTRICT COURT 4 DISTRICT OF NEVADA 5 UNITED STATES OF AMERICA, Case No. 3:12-cr-00038-HDM-VPC 6 Case No. 3:24-cv-00348-HDM Plaintiff, 7 v. ORDER 8 ANTONIO CASARES-CUEVAS, 9 Defendant. 10 The defendant has filed a motion to vacate, set aside, or 11 correct sentence pursuant to 28 U.S.C. § 2255 (ECF No. 261). The 12 court conducts a preliminary review pursuant to Rule 4(b) of the 13 Rules Governing Section 2255 Motions for the United States District 14 Courts, which provides that “[i]f it plainly appears from the 15 motion, any attached exhibits, and the record of prior proceedings 16 that the moving party is not entitled to relief, the judge must 17 dismiss the motion and direct the clerk to notify the moving 18 party.” For the following reasons, the defendant will be ordered 19 to show cause why his § 2255 motion should not be dismissed. 20 In 2013, the defendant was convicted, pursuant to a plea 21 agreement, of one count of conspiracy to possess with intent to 22 distribute 500 grams or more of a mixture or substance containing 23 a detectable amount of methamphetamine. (ECF Nos. 84, 149 & 152). 24 Under the agreement, the defendant agreed that he was not safety- 25 valve eligible. (ECF No. 152 at 7). 26 At 500 grams or more of methamphetamine, the defendant was 27 facing a statutory sentence of at least ten years up to life. 21 28 1 U.S.C. § 841(b)(1)(A). The PSR calculated the defendant’s 2 sentencing range to be 235 to 293 months, based in part on its 3 determination that the defendant was responsible for 1.3582 4 kilograms of actual methamphetamine. At sentencing, however, the 5 court determined that the amount of methamphetamine attributable 6 to the defendant was actually in excess of 1.5 kilograms. (ECF No. 7 208). This finding increased the defendant’s offense level by two, 8 yielding a guidelines range of 292 to 365 months. The court 9 ultimately sentenced the defendant to 292 months’ imprisonment.1 10 (ECF Nos. 198 & 208). The defendant filed a notice of appeal, which 11 was dismissed on the grounds that it was barred by the defendant’s 12 valid appeal waiver. (ECF No. 210). 13 Now, more than a decade after judgment of conviction was 14 entered in this case, the defendant has filed a motion for relief 15 under § 2255. The motion raises a single claim for relief: that 16 the defendant “received an unconstitutional sentence in violation 17 of the Fifth and Sixth Amendments” as recognized in Erlinger v. 18 United States, -- U.S. --, 144 S. Ct. 1840 (2024). (Id. at 18). 19 Specifically, the defendant asserts that his sentence violates 20 Erlinger in two ways: (1) the court found he was not safety-valve 21 eligible based on facts that had not been presented to and found 22 by a jury; and (2) the court, and not a jury, determined that he 23 was responsible for more than 1.5 kilograms of methamphetamine, 24 which increased his offense level by two. (Id. at 7). The 25 defendant’s motion fails to state a claim for relief. 26 27 1 The parties later stipulated to, and the court granted, a 28 reduction of the defendant’s sentence to 235 months under 18 U.S.C. § 3582(c)(2). (ECF Nos. 228-30). 1 In , the Supreme Court held that a jury must decide 2 beyond a reasonable doubt that prior offenses were committed on 3 separate occasions before a defendant can be subjected to an 4 enhanced mandatory minimum sentence under the Armed Career 5 Criminal Act. Erlinger’s specific holding has no application to 6 this case, which does not involve an enhanced sentence under the 7 ACCA. And the principle upon which Erlinger relied – that 8 “[v]irtually any fact that increases the prescribed range of 9 penalties to which a criminal defendant is exposed must be resolved 10 by a unanimous jury beyond a reasonable doubt (or freely admitted 11 in a guilty plea),” Erlinger, 144 S. Ct. at 1851 (internal 12 punctuation omitted) – stems from Apprendi v. New Jersey, 530 U.S. 13 466 (2000) and Alleyne v. United States, 570 U.S. 99 (2013), which 14 were both well established at the time of the defendant’s 15 conviction and sentence. Furthermore, even if this was somehow new 16 law, the defendant’s sentence violates neither Apprendi nor 17 Alleyne. Not only did the defendant freely admit in his plea 18 agreement that he was not eligible for the safety-valve based on 19 his criminal history and the firearms he possessed, “the factual 20 predicate for denying safety valve relief need not be proven to a 21 jury.” See United States v. Lizarraga-Carrizales, 757 F.3d 995, 22 999 (9th Cir. 2014). And the facts found by the court related to 23 drug quantity did not increase the prescribed range of penalties 24 the defendant was facing. See United States v. Vallejos, 742 F.3d 25 902, 906 (9th Cir. 2014); United States v. Sanchez, 583 Fed. App’x 26 727 (9th Cir. 2014) (“[T]he Sixth Amendment is not violated when 27 a sentencing court finds facts while exercising its discretion to 28 impose a sentence within the statutorily prescribed range.”). The 1 court’s sentence of 292 months fell squarely within the statutorily 2 prescribed range of ten years to life. 3 Finally, the motion appears to be untimely. A motion under § 4 2255 must be filed within one year of “the latest of— 5 (1) the date on which the judgment of conviction becomes final; 6 (2) the date on which the impediment to making a motion 7 created by governmental action in violation of the Constitution or laws of the United States is removed, if 8 the movant was prevented from making a motion by such governmental action; 9 (3) the date on which the right asserted was initially 10 recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made 11 retroactively applicable to cases on collateral review; or 12 (4) the date on which the facts supporting the claim or 13 claims presented could have been discovered through the exercise of due diligence. 14 15 28 U.S.C. § 2255(f). The defendant’s judgment of conviction had 16 been final for a decade before he filed the instant motion, so it 17 is not timely under § 2255(f)(1). Nor is it likely that the 18 defendant can establish timeliness under § 2255(f)(3) and the 19 Erlinger decision. Not only does Erlinger not apply to the 20 defendant’s case, the defendant has not identified any case – and 21 the court has found none – holding that any right initially 22 recognized in Erlinger is retroactively applicable on collateral 23 review. 24 / 25 / 26 / 27 / 28 / 1 For the foregoing reasons, the defendant shall, within thirty 2|| days of the date of this order, SHOW CAUSE why his § 2255 motion should not be dismissed as untimely and for failure to state a claim. Failure to file a timely response will result in dismissal of the § 2255 motion with prejudice. 6 IT IS SO ORDERED. 7 DATED: This 17th day of September, 2024. 9 burnt S tlt 40 UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28