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United States v. Moreno

United States District Court, D. Montana, Billings Division

March 7, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
JAIME MORENO, Defendant/Movant.

          ORDER RECHARACTERIZING AND DISMISSING MOTION AND APPEALABILITY

          Susan P. Watters United States District Court

         On March 5, 2018, Defendant Jaime Moreno moved the Court to reduce his sentence under 18 U.S.C. § 924(c) in light of Dean v. United States, __U.S.__, 137 S.Ct. 1170, 1178 (2017). He captions his submission a petition under 28 U.S.C. § 2241(c)(3) or a motion under Federal Rule of Civil Procedure 60.

         I. Background

         Moreno is currently serving a sentence of 270 months, consisting of 210 months for a drug trafficking crime and a consecutive term of 60 months for using or carrying a firearm in violation of § 924(c). Moreno's § 924(c) conviction rests on a Pinkerton theory. Dean holds that a sentencing court may take into account the 60-month term under § 924(c) when determining the sentence for any other count of conviction. If Dean applies in Moreno's case, the 210-month term could be reduced if the Court believed the total sentence of 270 months was '"greater than necessary' to accomplish [the] sentencing goals" of 18 U.S.C. § 3553(a)(2). United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009). Moreno is scheduled to leave prison and begin a five-year term of supervised release on October 16, 2019.

         Moreno's conviction and sentence became final on March 27, 2003, [1] when the mandatory guidelines regime was still in place. In December 2003, he timely filed a motion under 28 U.S.C. § 2255. After the Supreme Court issued its decision in United States v. Booker, 543 U.S. 220 (2005), Moreno added a claim that "the district court, under Booker, has the discreation [sic] to impose a lower sentence." Mot. for Remand (Doc. 405 at 2); see also Mem. (Doc. 405 at 5). He cited United States v. Ameline, 409 F.3d 1073, 1074-75 (9th Cir. 2005) (en banc). The claim may have been late, but it was not denied on that basis; it was denied because Booker did not apply to defendants whose convictions became final before Blakely v. Washington, 542 U.S. 296 (2004), and Booker were decided. See Order (Doc. 407) at 2-3. Moreno appealed, and the Court of Appeals denied a certificate of appealability. See Order (Doc. 423).

         II. Analysis

         Realizing he is not authorized to file a second motion under 28 U.S.C. § 2255, see 28 U.S.C. §§ 2255(h), 2244(b)(3)(A), Moreno asks the Court to accept submission of a habeas corpus petition under 28 U.S.C. § 2241 or a Rule 60 motion under the Federal Rules of Civil Procedure. He also contends that he is "actually innocent" of using or carrying a firearm under 18 U.S.C. § 924(c).

         A. Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241(c)(3)

         Generally, a federal prisoner seeking to challenge his conviction or sentence must proceed under 28 U.S.C. § 2255. But a federal prisoner may instead file a habeas petition under § 2241 if he can show both that he is actually innocent and that he "has not had an unobstructed procedural shot at presenting" his claim. See Stephens v. Herrera, 464 F.3d 895, 898 (9th Cir. 2006).

         The Court does not question Moreno's assertion that he personally did not use or carry a firearm. But that does not mean he is "actually innocent." He was convicted on a Pinkerton theory. To show actual innocence, he would have to show it is more likely than not that no reasonable juror would have found him guilty of conspiring with co-defendant Garibay-Lara to distribute methamphetamine or, at least, that no reasonable juror would have found he could reasonably foresee Garibay-Lara's using or carrying a firearm. He does not point to any new evidence on these issues, and the Court of Appeals decided the evidence was sufficient to support his conviction. See United States v. Florez, 52 Fed.Appx. 23, 26-27, No. 01-30012 (9th Cir. Nov. 27, 2002) (unpublished mem. disp.). That is the law of the case, and this Court cannot undo it. See United States v. Jingles, 702 F.3d 494, 499-500 (9th Cir. 2012).

         Further, with his first § 2255 motion, Moreno took a shot at relief under § 2255, and his motion was not obstructed on procedural grounds. As a matter of statutory interpretation, Dean is a logical consequence of Booker and 18 U.S.C. § 3553(a). There is no reason Moreno could not have presented in his first § 2255 motion essentially the same claim he makes now.

         Moreno cannot meet either requirement for proceeding under 28 U.S.C. § 2241. He is not actually innocent, and he has already had an unobstructed procedural shot at presenting his current claim.

         B. Motion under Fed.R.Civ.P. 60

         A motion under Rule 60 of the Federal Rules of Civil Procedure would allow Moreno to reopen, not the criminal judgment setting his sentence, but the judgment denying his initial motion under 28 U.S.C. § 2255. But, to obtain relief under Rule 60, Moreno must show "some defect in the integrity of the ... proceedings" on his initial § 2255 motion. Gonzalez v. Crosby,545 U.S. 524, ...


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