Alvarez-Sanchez v. United States

Full title: RAMON ALVAREZ-SANCHEZ, BOP Reg. # 54996-019, Movant, v. UNITED STATES OF…

Court: UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

Date published: Aug 24, 2017

CRIMINAL ACTION NO. 1:03-CR-493-ODE-AJB-24 (N.D. Ga. Aug. 24, 2017)

Opinion

CRIMINAL ACTION NO. 1:03-CR-493-ODE-AJB-24 CIVIL ACTION NO. 1:17-CV-3014-ODE-AJB

08-24-2017

RAMON ALVAREZ-SANCHEZ, BOP Reg. # 54996-019, Movant, v. UNITED STATES OF AMERICA, Respondent.

ALAN J. BAVERMAN UNITED STATES MAGISTRATE JUDGE

MOTION TO VACATE 28 U.S.C. § 2255

UNITED STATES MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION

Movant, Ramon Alvarez-Sanchez, confined in the Edgefield Federal Correctional Institution in Edgefield, South Carolina, has submitted a fourth 28 U.S.C. § 2255 motion to vacate his convictions in criminal action number 1:03-cr-493-ODE-AJB-24. [Doc. 2639.]¹

1 Citations to the record in this Final Report and Recommendation refer to case number 1:03-cr-493-ODE-AJB-24.

The matter is before the Court for preliminary review pursuant to Rule 4(b) of the Rules Governing Section 2255 Proceedings. For the reasons discussed below, the undersigned RECOMMENDS that Movant's fourth § 2255 motion be DISMISSED as impermissibly successive.

I. Background

On January 27, 2005, Movant pleaded guilty to (1) conspiracy to possess with intent to distribute cocaine, methamphetamine, and marijuana, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(A)(ii), (vii), & (viii), and 846, and (2) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(B). [Doc. 1040 at 2-4, 16; Doc. 1428 at 1; Doc. 1428-1 at 1.] On August 1, 2005, the District Court sentenced Movant to 387 months imprisonment, followed by five years supervised release. [Docs. 1786, 1788.] The United States Court of Appeals for the Eleventh Circuit affirmed. [Doc. 2054.] See United States v. Alvarez-Sanchez, 187 Fed. Appx. 914 (11^th Cir. June 28, 2006) (per curiam).

Movant filed his first § 2255 motion on November 13, 2007. [Doc. 2079.] The District Court denied that motion on October 2, 2008. [Doc. 2128.] The Eleventh Circuit granted a certificate of appealability on one issue on May 14, 2009. [Doc. 2192.] The Eleventh Circuit subsequently vacated and remanded for an evidentiary hearing on that issue. [Doc. 2250.] See Alvarez-Sanchez v. United States, 350 Fed. Appx. 421 (11^th Cir. Oct. 29, 2009) (per curiam). The District Court resolved the issue against Movant on March 3, 2011. [Doc. 2371.] The Eleventh Circuit affirmed. [Docs. 2459, 2462.] See Alvarez-Sanchez v. United States, 451 Fed. Appx. 870 (11^th Cir. Jan. 17, 2012) (per curiam).

Movant filed a construed second § 2255 motion on June 10, 2016. [Doc. 2576.] The District Court denied that motion without prejudice on June 15, 2016. [Doc. 2578.] Movant filed a construed third § 2255 motion on June 27, 2016. [Doc. 2583.] While that motion was pending, the following two events occurred. First, the Eleventh Circuit denied Movant's application for leave to file a second or successive § 2255 motion on July 26, 2016. [Doc. 2585.] Second, the District Court reduced Movant's sentence to 322 months imprisonment on August 12, 2016, pursuant to 18 U.S.C. § 3582(c)(2), because his sentencing guideline range was retroactively lowered. [Doc. 2593.] The District Court dismissed Movant's construed third § 2255 motion on January 18, 2017. [Doc. 2622.]

Movant filed his fourth § 2255 motion on August 9, 2017. [Doc. 2639.] Movant argues that he is entitled to relief based on Dean v. United States, 137 S. Ct. 1170 (2017). [Id. at 4-9.] In Dean, the United States Supreme Court held the following: "[I]n calculating the sentence for the predicate [violent or drug trafficking] offense, a judge [may consider] the fact that the defendant will serve the mandatory minimums imposed under [18 U.S.C.] § 924(c)." Dean, 137 S. Ct. at 1174, 1175-78.

II. Discussion

Summary dismissal of a § 2255 motion is proper "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief . . . ." Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts. Unless the Eleventh Circuit authorizes a second or successive motion to vacate, the District Court lacks subject matter jurisdiction to consider such a motion. See 28 U.S.C. §§ 2244(b)(3)(A) & 2255(h); Farris v. United States, 333 F.3d 1211, 1216 (11^th Cir. 2003) (per curiam).

Because Movant's first § 2255 motion was denied on the merits, he must obtain authorization from the Eleventh Circuit for the District Court to consider a second or successive § 2255 motion. Movant has failed to obtain the necessary authorization. Therefore, the District Court lacks subject matter jurisdiction to consider Movant's fourth § 2255 motion. See United States v. Florence, 411 Fed. Appx. 230, 231 (11^th Cir. Jan. 25, 2011) (stating that absent authorization to file second or successive § 2255 motion, district court lacks subject matter jurisdiction).

The District Court's § 3582(c)(2) reduction of Movant's sentence on August 12, 2016, does not affect that outcome. Section 3582(b) provides the following: "Notwithstanding the fact that a sentence [of] imprisonment can subsequently be (1) modified pursuant to the provisions of subsection (c) . . . a judgment of conviction that includes such a sentence constitutes a final judgment for all other purposes." 18 U.S.C. § 3582(b); see also United States v. Bravo, 203 F.3d 778, 781 (11^th Cir. 2000) (explaining that "a sentencing adjustment undertaken pursuant to Section 3582(c)(2) does not constitute a de novo resentencing"). Therefore, a § 3582(c)(2) sentence reduction "does not allow a prisoner to avoid the bar on successive § 2255 motions." Dyab v. United States, 855 F.3d 919, 923 (8^th Cir. 2017); see also United States v. Jones, 796 F.3d 483, 486 (5^th Cir. 2015) (holding that § 3582(c)(2) reduction "does not wipe clean the slate of habeas applications that [a § 2255 movant] has previously filed"); White v. United States, 745 F.3d 834, 837 (7^th Cir. 2014) (holding that § 3582(c)(2) reduction "does not reset the [collateral motion] count, for purposes of § 2244 and § 2255"); Sherrod v. United States, 858 F.3d 1240, 1242 (9^th Cir. 2017) (per curiam) (agreeing with Jones and White).

III. Conclusion

For the reasons stated above,

IT IS RECOMMENDED that (1) Movant's fourth § 2255 motion, [Doc. 2639], be DISMISSED as impermissibly successive, and (2) civil action number 1:17-cv- 3014-ODE-AJB be DISMISSED.²

2 The undersigned offers no recommendation regarding a certificate of appealability because 28 U.S.C. § 2253(c) does not apply to this case. See Hubbard v. Campbell, 379 F.3d 1245, 1247 (11^th Cir. 2004) (per curiam) (explaining that (1) dismissal of habeas petition for lack of subject matter jurisdiction is not "a final order in a habeas corpus proceeding" within the meaning of § 2253(c), and (2) Eleventh Circuit has jurisdiction to review dismissal under 28 U.S.C. § 1291); Rule 11(a), Rules Governing Section 2255 Proceedings (indicating that § 2253(c) applies to § 2255 motions). --------

The Clerk is DIRECTED to terminate the referral of Document 2639 to the undersigned.

IT IS SO RECOMMENDED and DIRECTED, this 24th day of August, 2017.

/s/ _________

ALAN J. BAVERMAN

UNITED STATES MAGISTRATE JUDGE