United States District Court, D. Minnesota
RICHARD H. KYLE United States District Judge
Defendant, Antonio Chavez Aguirre, Jr., has filed a Motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255, and a Motion for reduction of sentence under 18
U.S.C. § 3582(c)(2). Doc. Nos. 204 and 205. After
careful consideration of Aguirre's Motions, the
Government's response, and the law and facts applicable
to this case, Aguirre's Motions will be denied for the
reasons that follow.
February 14, 2012, Aguirre was charged in an Indictment with
conspiracy to distribute methamphetamine (Count 1) in
violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A)
and 846, and with possession with intent to distribute
methamphetamine (Count 7) in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(B). Doc. No. 1. On April
3, 2012, he pled guilty to Count 1. See Doc. No.
114. In his written Plea Agreement, Aguirre admitted that he
obtained methamphetamine from various sources which he then
distributed to co-defendant David Richard DeKing and others.
Doc. No. 118 at ¶ 2. He also admitted that the police
seized approximately two pounds of methamphetamine and nine
ounces of a cutting agent, which were linked to his drug
trafficking activities. Id.
27, 2012, Aguirre appeared for sentencing. Doc. No. 145. The
probation office determined, consistent with the positions of
the parties, that Aguirre had a base offense level of 36.
See Presentence Investigation report
(“PSR”) at ¶ 42; Doc. No. 118 at ¶
6.a.; USSG § 2D1.1(c)(2) (Nov. 2011) (at least 500 grams
but less than 1, 500 grams of actual methamphetamine). With a
three-level reduction for acceptance of responsibility, and a
criminal history category of III, this resulted in a
guideline range of 168 to 210 months. See PSR at
¶¶ 48, 58, 97; Doc. No. 118 at ¶
The Court adopted the findings of the PSR, varied downward,
and sentenced Aguirre to serve 132 months in prison. Doc.
Nos. 147 and 148 at Part III. Aguirre did not appeal his
February 9, 2015, Aguirre filed a pro se motion to
reduce his sentence pursuant to 18 U.S.C. § 3582(c)(2).
Doc. No. 177. He claimed that he was entitled to a reduction
of his sentence from 132 months to 96 months because of
Amendment 782 to the Sentencing Guidelines (which
retroactively awarded a two-level reduction for most drug
offenses). Id. On August 10, 2015, the Court denied
Aguirre's motion because, as the Government had argued,
his amended guideline range would have been 135 to 168
months, a range higher than the sentence the Court had
previously imposed. See Doc. Nos. 188 and 189; USSG
§ 1B1.10(b)(2)(A) (“Except [in cases involving
substantial assistance] the court shall not reduce the
defendant's term of imprisonment under 18 U.S.C. §
3582(c)(2) . . . to a term that is less than the minimum of
the amended guideline range.”).
November 28, 2016, Aguirre filed the instant Motions.
See Doc. Nos. 204 and 205. In his § 2255
Motion, Aguirre claims relief under United States v.
McFee, __ F.3d __, 2016 WL 6803038 (8th Cir. Nov. 17,
2016), which held that a terroristic threats conviction under
Minnesota law is not a “violent felony” under the
ACCA. Aguirre's § 2255 Motion should be denied on
two grounds. First, the Motion is time-barred in that Aguirre
filed it outside the one-year limitation period of 28 U.S.C.
§ 2255(f). Second, there is no substantive merit to the
Motion because the decision in McFee would have no
effect on Aguirre's guideline calculations or range. In
his § 3582(c)(2) Motion, Aguirre provides no new support
for his request for a sentence reduction. In any event, as
this Court has previously ruled, Aguirre's §
3582(c)(2) Motion has no merit because his amended guideline
range would be above the sentence the Court previously
imposed. See Doc. No. 188.
STANDARD OF REVIEW
prevail on a § 2255 motion, a defendant must show that
his challenge raises a "fundamental defect which results
in a complete miscarriage of justice." Davis v.
United States, 417 U.S. 333, 346 (1974). Section 2255
relief is extraordinary; consequently, it "is reserved
for transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and, if uncorrected, would result in a complete
miscarriage of justice." United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Thus, §
2255 "does not encompass all claimed errors in
conviction and sentencing." Sun Bear v. United
States, 644 F.3d 700, 704 (8th Cir. 2011) (en
banc) (quoting United States v. Addonizio, 442
U.S. 178, 185 (1979)). Rather, it encompasses jurisdictional
and constitutional errors. Id. Beyond that, its
scope is "severely limited." Id. "[A]
miscarriage of justice cognizable under § 2255 occurs
when the sentence is in excess of that authorized by
law." Id. at 706. The burden of proof is on a
petitioner in a § 2255 proceeding to show that the court
violated “the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a); Holloway v.
United States, 960 F.2d 1348, 1355 (8th Cir. 1992);
Day v. United States, 428 F.2d 1193, 1196 (8th Cir.
1970) (stating that petitioner bears burden of proof on each
ground asserted in a § 2255 motion).
AGUIRRE'S § 2255 MOTION IS TIME-BARRED
one-year statute of limitations applies to the filing of a
motion under § 2255. The limitation ...