United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE UNDER 28 U.S.C. 2255
ROBERT S. LASNIK, Magistrate Judge.
This matter comes before the Court on Petitioner Clay Roueche's motion to vacate, correct, or set aside his sentence pursuant to 28 U.S.C. § 2255. Dkt. # 1. Petitioner challenges the sentence imposed after he pled guilty to conspiracy to export cocaine, conspiracy to import marijuana, and conspiracy to engage in money laundering in CR07-344RSL. Dkt. # 1 at 1, 13. Having considered the memoranda and exhibits submitted by the parties, and the remainder of the record, the Court DENIES Petitioner's § 2255 motion.
In October 2007, Petitioner, a Canadian citizen, and eight co-defendants were charged with conspiracy to possess cocaine with intent to distribute and to export, conspiracy to import marijuana, and conspiracy to engage in money laundering. CR # 1. Petitioner was arrested in Texas on May 19, 2008. CR # 28. A few months after Petitioner was arrested, a grand jury returned a Superseding Indictment, which charged Petitioner with conspiracy to export cocaine, conspiracy to distribute cocaine, conspiracy to import marijuana, using and carrying a firearm during a crime of drug trafficking, and conspiracy to engage in money laundering. CR # 49. On April 28, 2009, Petitioner pled guilty to one count of conspiracy to export cocaine, one count of conspiracy to import marijuana, and one count of conspiracy to engage in money laundering. CR # 257 at 1. In exchange, the government agreed to dismiss the remaining charges against Petitioner. CR # 258.
The Court sentenced Petitioner to 360 months of imprisonment followed by five years of supervised release. CR # 535 at 2-3. The Court adopted the offense level calculations set forth in the Pre-sentence Report. In doing so, the Court applied a two level enhancement to Petitioner's base offense level for possession of a firearm during the course of the conspiracy, a two level enhancement for use of an aircraft to import and export controlled substances, a four level enhancement based on Petitioner's leadership role in the offenses, and a two level enhancement for the money laundering conviction. See CR # 371 at 37-38. The Court also applied a three level decrease to Petitioner's base offense level for acceptance of responsibility.
On direct appeal, the Ninth Circuit found that the Court erred by failing to resolve certain disputed facts in the Pre-sentence Report and failing to rule on Petitioner's objections to two declarations submitted for the sentencing proceeding. CR # 378 at 3-5. The Ninth Circuit reversed the Court's sentence and remanded the case for re-sentencing. Id. at 7. On February 15, 2011, the Court imposed the same sentence of 360 months of imprisonment followed by five years of supervised release. CR # 387. The Court entered an amended judgment on February 22, 2011. CR # 389. Petitioner did not appeal.
Petitioner filed his § 2255 motion to vacate on November 26, 2013. Dkt. # 1 at 13. Petitioner argues that his constitutional rights were violated when the Court increased his base offense level based on the quantity of drugs involved, his leadership role, and the use of an airplane to import and export controlled substances. Dkt. # 1-2 at 23-26. Relying on the Supreme Court's recent decision in Alleyne v. United States, ___ U.S. ___ , 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), Petitioner contends that the facts supporting these enhancements must be found by a jury, not a judge, because they increase the mandatory minimum sentence. Id. at 26-31. In addition, Petitioner claims that even if Alleyne does not apply to his case, the Court erred by applying those enhancements to his base offense level. Id. at 31-38.
A motion by a federal prisoner for post conviction relief under 28 U.S.C. § 2255 is subject to a one-year statute of limitation. This one-year limitation period runs from the latest of the following four events: (1) the date the judgment of conviction becomes final; (2) the date a government-created impediment to filing is removed; (3) the date the right asserted is initially recognized by the Supreme Court, if that right has been newly recognized and made retroactively applicable to cases on collateral review; or (4) the date the facts supporting the claims become discoverable. 28 U.S.C. § 2255(f)(1)-(4).
Here, subsections (f)(1) and (f)(2) are not applicable. First, when a federal prisoner fails to seek direct review, a judgment of conviction becomes final at the expiration of the time during which he could have sought review by direct appeal. United States v. Schwartz , 274 F.3d 1220, 1223 (9th Cir. 2001). The date by which Petitioner was required to file a notice of appeal was 14 days after the Court entered the amended judgment. Fed. R. App. P. 4(b)(1)(A). Therefore, Petitioner's conviction became final on March 9, 2011. Second, with respect to subsection (f)(2), Petitioner does not suggest that a government-created impediment was recently removed.
Rather, Petitioner contends that his motion is timely pursuant to § 2255(f)(3) and (f)(4) based on the Supreme Court's decision in Alleyne. Dkt. # 1-2 at 8-11. In Alleyne, the Supreme Court held that any fact that increases the mandatory minimum sentence must be submitted to the jury and proved beyond a reasonable doubt. 133 S.Ct. at 2155. A § 2255 motion asserting a newly recognized right is timely if it is filed within one year of the date on which the right was recognized by the Supreme Court and that right has been made retroactively applicable to cases on collateral review. Petitioner's argument that his motion is timely based on the new right recognized in Alleyne fails for two reasons.
First, Alleyne does not apply to sentencing enhancements that do not increase the statutory mandatory minimum. United States v. Vallejos, 742 F.3d 902, 906-07 (9th Cir. 2014). Here, the sentencing enhancements applied to Petitioner did not affect the statutory minimum ...