Free Response - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona FREDERICK A. BATTISTA Assistant U.S. Attorney Maryland State Bar Member [email protected] Two Renaissance Square 40 N. Central Avenue, Suite 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA

11 United States of America, 12 13

CR-03-116-PHX-EHC SUPPLEMENTAL MOTION TO DISMISS DEFENDANT'S AMENDMENT TO MOTION TO REVIEW AND REFORM JUDGEMENT IN A CRIMINAL CASE

Plaintiff, v.

14 Omar Gutierrez-Ochoa, 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant.

The United States of America, by and through its attorneys undersigned, hereby responds to defendant's Amendment to Motion to Review and Reform Judgement in a Criminal Case, pursuant to 18 U.S.C. §§ 3582 and 3742, and requests that this Honorable Court deny the original and amended motions for lack of jurisdiction. This response is supported by the attached Supplemental Memorandum of Points and Authorities. Respectfully submitted this 15th day of September, 2005. PAUL K. CHARLTON United States Attorney District of Arizona S/ Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney

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Supplemental Memorandum of Points and Authorities I. Nature of the Case; Course of Proceedings. On April 6, 2003, the defendant, Omar Gutierrez-Ochoa, admitted to having violated

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Standard Condition 1 of the terms of his supervised release in CR-99-033-PHX-EHC and plead
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guilty an Information charging one violation of 8 U.S.C. § 1326(a), enhanced by 8 U.S.C. §
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1326(b)(2), Illegal Reentry After Deportation, a Class C felony offense, in CR-03-116-PHX7

EHC. (See Plea Agreement, Clerk's Record (CR 6.) Under the terms of his written plea
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agreement, defendant waived his right to challenge his sentence on direct appeal or pursuant to
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28 U.S.C. § 2255 or any other collateral attack. In particular, defendant's plea agreement
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expressly states:
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Waiver of Defenses and Appeal Rights
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The defendant waives any and all motions, defenses, probable cause determinations, and objections which the defendant could assert to the information or indictment or to the court's entry of judgment against the defendant and imposition of sentence upon the defendant, provided that the sentence is consistent with this agreement. The defendant further waives: (1) any right to appeal the court's entry of judgment against defendant; (2) any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals); and (3) any right to collaterally attack defendant's conviction and sentence under Title 28, United States Code, Section 2255, or any other collateral attack. (Emphasis added.) On April 4, 2003, defendant, pursuant to the terms of the plea agreement, was sentenced to 46 months in prison in CR-03-116-PHX-EHC (CR 10) and sentenced to an additional consecutive term of 12 months imprisonment in CR-99-033-PHX-EHC (CR 46). The judgment in CR-03-116-PHX-EHC was entered by this Court on April 9, 2003. (CR 10). No notice of appeal was filed in the case within 10 days of the original judgement. On February 18, 2005, defendant filed a notice of appeal with the Ninth Circuit. (CR 13.) On April 29, 2005, defendant's notice of appeal was dismissed for lack of jurisdiction. (CR 16.) The defendant sought collateral review of his sentence on May 16, 2005. (CR 17, 18.) Defendant's amended motion and memorandum raise Apprendi, Blakely and Booker style arguments in challenging his original plea and sentence in CR-03-116-PHX-EHC. Defendant's
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amended petition claims that he is seeking relief under 18 U.S.C. §§ 3582 and 3742 instead of 28 U.S.C. § 2255. II. Discussion a. Action pursuant to 18 U.S.C. § 3742.

Defendant contends that 18 U.S.C. § 3742 authorizes his untimely collateral attack because there is no time limitation set forth in the statute. Section 3742 sets forth a defendant's right to file a "notice of appeal" in the district court for review of an otherwise final sentence under four enumerated circumstances. Setting aside for a moment that the defendant waived this right to file an appeal under Section 3742 as noted above, the time limitation for filing such an appeal is clearly set forth in Fed. R. App. P. 4(b). Since the judgement in this case has been final for many months since April 19, 2005, defendant's motion herein is time barred by Rule 4(b)(1)(A)(i) (10 days from the date of entry of the judgement). Moreover, defendant's "motion" is not authorized by Section 3742 and precluded by the waiver contained in his plea agreement. The defendant pled guilty pursuant to written plea agreement. In exchange for his plea deal, defendant waived "any right to appeal the imposition of sentence upon defendant under Title 18, United States Code, Section 3742 (sentence appeals)." (Plea Agreement, CR 6.) Because defendant's motion is time barred and he expressly waived his right to file an appeal pursuant to Section 2742, this Court should dismiss the defendant's petition. b. Action pursuant to 18 U.S.C. § 3582.

Defendant also contends that 18 U.S.C. § 3582 authorizes his untimely collateral attack and that there is no time limitation set forth in the statute. Section 3582(c)(1)(2) authorizes a defendant's challenge to his prior sentence under a very limited and particular circumstance, i.e., in the case where a defendant has been sentenced to a term of imprisonment based upon a sentencing range that has been subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o). Since no such amendment has occurred and defendant expressly

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waived his right to file "any other collateral attack," this Court should dismiss the defendant's petition. c. The decisions in Apprendi, Blakely, and Booker are not retroactively applicable on collateral review.

As stated in government's initial response, the Supreme Court decisions in Apprendi,
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Blakely, and Booker are not retroactively applicable on collateral review. First, the Ninth
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Circuit concluded in United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002), that Apprendi v. New Jersey, 530 U.S. 466 (2000), is not retroactively applicable. The Supreme

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Court cases in Blakely v. Washington, 124 S.Ct. 2531 (2004), and United States v. Booker, 125
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S.Ct. 738 (2005), merely apply Apprendi. In Booker, the Supreme Court held that its decision
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in that case applies to cases not yet final on direct review. 125 S.Ct. at 769. Every circuit to
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consider the issue has held that Blakely and Booker do not apply in collateral relief proceedings
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like this one, regardless of whether the case involves a first petition or a second or successive
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petition.
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The Ninth Circuit has stated:
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Petitioner has filed an application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court. Petitioner contends that his sentence is unconstitutional under the Supreme Court's recent opinion in Blakely v. Washington, --- U.S. ----, 124 S.Ct. 2531, th 159 L.Ed.2d 403 (2004). In our decision in Rees v. Hill, 286 F.3d 1103 (9 Cir. 2002), we determined that, because the Supreme Court had not mandated that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), be applied retroactively on collateral review, Rees could not meet the requirements in 28 U.S.C. § 2244 for obtaining leave to file a second petition for habeas relief based on an alleged violation of Apprendi. Rees at 1104; see also United States v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002). Similarly, the Supreme Court has not made Blakely retroactive to cases on collateral review. Petitioner's application for authorization to file a second or successive 28 U.S.C. § 2255 motion in the district court is therefore denied. See also In re Dean, 375 F.3d 1287 (11th Cir. 2004); Simpson v. United States, 376 F.3d 679 (7th Cir. 2004). Cook v. United States, 386 F.3d 949, 950 (9th Cir. 2004). The decisions from other circuits are similar. See Green v. United States, 397 F.3d 101,

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102-03 (2nd Cir. 2005) ("In Booker, the Supreme Court noted that its holdings in that case apply to `all cases on direct review' but made no explicit statement of retroactivity to collateral cases.

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. . . Thus, neither Booker nor Blakely apply retroactively to Green's collateral challenge."); Humphress v. United States, 398 F.3d 855, 860-63 (6th Cir. 2005); United States v. McReynolds, 397 F.3d 479, 480-81 (7th Cir. 2005) (Booker/Blakely only applies to cases not yet final on direct review on the day that Booker was decided, January 12, 2005; ruling was based on Schriro v Summerlin, 124 S.Ct. 2519 (2004) ­ which held that Ring v. Arizona, 536 U.S. 584 (2002), another of Apprendi's progeny, is not retroactive ­ and the language of Booker itself); United States v. Price, 2005 WL 535361 (10th Cir., Mar. 8, 2005); Bey v United States, 399 F.3d 1266 (10th Cir. 2005); In re Anderson, 396 F.3d 1336, 1338-40 (11th Cir. 2005) (denying requests for permission to file successive § 2255 motions based on Blakely and Booker). The Eleventh Circuit recently reiterated that the Booker decision is not retroactively applicable to cases on collateral review. Varela v. United States, 2005 WL 367095, at *3-4 (11th Cir. Feb. 17, 2005) ("as the Supreme Court concluded in Schriro, we conclude that Booker's constitutional rule falls squarely under the category of new rules of criminal procedure that do not apply retroactively to § 2255 cases on collateral review"). Thus, Apprendi, Blakely, and Booker are simply inapplicable to the defendant's challenge on any ground.

III.

Conclusion For the foregoing reasons, the defendant's Review and Reform Judgement in a Criminal

Case should be dismissed because the defendant has waived his right to raise all claims regarding the terms of his sentence and the subject petition is untimely. Respectfully submitted this 15th day of September, 2005.

PAUL K. CHARLTON United States Attorney District of Arizona S/ Frederick A. Battista FREDERICK A. BATTISTA Assistant U.S. Attorney
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CERTIFICATE OF SERVICE

I hereby certify that on September 15, 2005, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF system for filing and transmittal of a Notice of Electronic Filing and a copy of the foregoing was mailed via U.S. Postal Service this 15th day 4 of September, 2005, to:
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Omar Gutierrez-Ochoa Federal Reg. No. 44015-008 6 Federal Correctional Institution ­ Beckley Post Office Box 350 7 Beaver, West Virginia 25813
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s/ Frederick A. Battista FREDERICK A. BATTISTA

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