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United States v. Aguirre

United States District Court, D. Minnesota

March 27, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO CHAVEZ AGUIRRE, JR., Defendant. Civil No. 16-4008 (RHK)

          ORDER

          RICHARD H. KYLE United States District Judge

         The 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.

         BACKGROUND

         I. PREVIOUS PROCEEDINGS

         On 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.

         On July 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 ¶ 6.e.[1] 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 sentence.[2]

         On 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.”).

         II. AGUIRRE'S MOTIONS

         On 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.

         ANALYSIS

         I. STANDARD OF REVIEW

         To 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).

         II. AGUIRRE'S § 2255 MOTION IS TIME-BARRED

         A one-year statute of limitations applies to the filing of a motion under § 2255. The limitation ...


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