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Nieto v. United States

United States District Court, W.D. Washington, Seattle

April 11, 2017

NAHUM COPADO NIETO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant. NAHUM COPADO NIETO, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          ORDER DENYING MOTIONS TO REDUCE SENTENCE

          James L. Robart, Judge

         I. INTRODUCTION

         Before 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, [1] the court DENIES both of Mr. Nieto's motions.

         II. BACKGROUND & ANALYSIS

         On 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 IV.[2] See Id., Dkt. #187 at 2.

         Mr. 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)).

         Mr. Nieto again moves to reduce his sentence.[3] 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.[4] (See 2d Mot.)

         Mr. 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.[5] 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.

         The 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.

         Having 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.

         III. CONCLUSION

         For the 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 appealability.

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