United States District Court, W.D. Washington, Seattle
ORDER DENYING MOTIONS TO REDUCE SENTENCE
L. Robart, Judge
the court are petitioner Nahum Copado Nieto's motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 (1st Mot. (C16-1654JLR, Dkt. # 1)) and his
motion for a reduction of sentence (2d Mot. (C16-1898 JLR,
Dkt. #1)). The court has considered Mr. Nieto's motions,
Defendant United States of America's ("the
Government") response (Resp. (C16-1654JLR, Dkt. #6)),
the balance of the record, and the applicable law.
Considering itself fully advised,  the court DENIES both of Mr.
BACKGROUND & ANALYSIS
October 17, 2008, Mr. Nieto pled guilty to conspiracy to
distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1), b(1)(A), 846. See United States
v. Copado-Nieto, No. CR08-0144JLR (W.D. Wash.), Dkt. ##
68-70. The parties agreed that the United States Sentencing
Guidelines set the base offense level at 38 and directed a
two-level upward adjustment for Mr. Nieto's role as an
organizer or manager. Id., Dkt. # 70 ¶
8(a)-(b). The plea agreement also stipulated that Mr.
Nieto's leadership role made him ineligible for a safety
valve adjustment. Id. ¶ 8(c). The court
sentenced Mr. Nieto to 216 months of imprisonment.
Id., Dkt. # 137 at 2. This sentence was shorter than
the guideline recommendation of 292 months to 365 months,
which the court calculated based on Mr. Nieto's total
offense level of 37 and criminal history category
See Id., Dkt. #187 at 2.
Nieto has since lost two challenges to his sentence. He
appealed his sentence to the Ninth Circuit, which affirmed
this court and found that Mr. Nieto raised "no arguable
grounds for relief on direct appeal."
Copado-Nieto, No. CR08-0144JLR, Dkt. # 170 at 2. Mr.
Nieto also moved this court for a reduction of his sentence,
id., Dkt. #181, and the court denied that motion on
September 11, 2015, id., Dkt. #187. The court
explained that it could not reduce Mr. Nieto's sentence
pursuant to 18 U.S.C. § 3582(c)(2) because his sentence
was "already well below the applicable sentencing
range." Id., Dkt. # 187 at 3 (citing USSG
§ IB 1.10(b)(2)).
Nieto again moves to reduce his sentence. In his first
motion, he makes the following arguments: (1) Amendment 794
to the Unites States Sentencing Guidelines applies
retroactively and the court must reassess his role and,
therefore, reduce his sentence (1st Mot. at 4-7); (2) counsel
was ineffective for failing to challenge his role enhancement
at sentencing (id. at 8-9); and (3) counsel was
ineffective for failing to challenge the sufficiency of the
evidence (id. at 10-11). Mr. Nieto's second
motion more broadly argues that Mr. Nieto is entitled to a
sentence reduction, either because of Amendment 794 or based
on other sentencing guidelines. (See 2d Mot.)
Nieto's first argument, which he reiterates in his second
motion, is untimely and improperly presented in a Section
2255 motion. Section 2255(f) applies a one-year statute of
limitations to motions under Section 2255. 28 U.S.C. §
2255(f). The statute of limitations begins running on the
latest of four events: (1) the date the judgment of
conviction becomes final; (2) the date any government-created
impediment to making a motion is removed; (3) the date the
right is newly recognized by the Supreme Court, if the right
applies retroactively; and (4) the date on which the fact or
facts could have been discovered through due diligence.
Id. Although his motion is not a model of clarity,
Mr. Nieto appears to contend that his motion is timely based
on Section 2255(f)(3) because it is a newly recognized and
retroactively applicable right. (See 1st Mot. at
5-6; see also 2d Mot. at 6-8.) However, Amendment
794 is not a Supreme Court decision. Section 2255(f)(3) therefore
does not apply, see 28 U.S.C. § 2255(f)(3), and
Mr. Nieto's motion is untimely. Moreover, Mr. Nieto's
contention that the court improperly calculated his sentence
is a non-constitutional sentencing adjustment claim and
therefore not cognizable under Section 2255. See Hamilton
v. United States, 61 F.3d 761, 763-64 (9th Cir. 1995)
("Although collateral review under [S]ection 2255 is
thus quite broad, it does not encompass all claimed errors
in... sentencing.... If a petitioner does not allege lack of
jurisdiction or constitutional error, an error of law will
not provide a basis for habeas relief unless that error
resulted in a complete miscarriage of justice or in a
proceeding inconsistent with the rudimentary demands of fair
procedure." (first alteration in original) (internal
citations and quotations omitted)); see also United
States v. Schlesinger, 49 F.3d 483, 484-85 (9th Cir.
1994) (discussing the limited circumstances in which a
non-constitutional sentencing error can be raised under
Section 2255). Accordingly, the court rejects the first
ground raised in Mr. Nieto's first motion and the only
ground raised in his second motion.
second and third arguments in Mr. Nieto's first motion
lack merit because in his plea agreement, Mr. Nieto agreed to
a two-level upward adjustment based on his role and admitted
to the facts underlying his offense. Copado-Nieto,
No. CR08-0144JLR, Dkt. # 70 ¶¶ 7, 8(b).
Counsel's performance was neither objectively deficient
nor prejudicial because Mr. Nieto conceded those points in
the plea agreement. See Strickland v. Washington,
466 U.S. 668, 687 (1984) (setting forth the standard for
ineffective assistance of counsel). Accordingly, the court
also rejects those grounds for relief.
rejected the three grounds for relief that Mr. Nieto raises,
the court denies his motions. Because Mr. Nieto has not made
a "substantial showing of the denial of a constitutional
right, " 28 U.S.C. § 2253(c)(2), the court declines
to issue a certificate of appealability.
foregoing reasons, the court DENIES Mr. Nieto's motions
for a reduction of sentence (C16-1654JLR, Dkt. # 1;
C16-1898JLR, Dkt. # 1) and declines to issue a certificate of