United States District Court, D. Montana, Billings Division
ORDER RECHARACTERIZING AND DISMISSING MOTION AND
P. Watters United States District Court
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.
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.
conviction and sentence became final on March 27, 2003,
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).
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).
Petition for Writ of Habeas Corpus under 28 U.S.C. §
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).
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.
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.
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
Motion under Fed.R.Civ.P. 60
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, ...