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United States v. Aguilar-Lopez

United States District Court, E.D. Washington

January 3, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANTONIO AGUILAR-LOPEZ, Defendant.

          ORDER DENYING DEFENDANT'S PETITION FOR WRIT OF ERROR CORAM NOBIS [1]

          EDWARD F. SHEA Senior United States District Judge

         Before the Court, without oral argument, are Defendant Antonio Aguilar-Lopez's “Motion to Modify Term of Imprisonment and Request for Assignment of Counsel, ” ECF No. 280, and “Petition for an Order to Reopen Criminal Case Under Writ of Error Coram Nobis, ” ECF No. 279. For the following reasons, the Court denies both requests.

         I. FACTS AND PROCEDURAL HISTORY

         On February 23, 2012, the Court sentenced Mr. Aguilar-Lopez to 240 months' imprisonment after he was convicted of Manufacturing a Controlled Substance (Marijuana) and Aiding and Abetting in violation of 21 U.S.C. § 841(a)(1). ECF No. 211. That sentence of 240 months was the statutory minimum, based on the quantity of drugs and the fact that Mr. Aguilar-Lopez had an Idaho state conviction in 2007 that qualified as a “prior conviction for a felony drug offense.” See 21 U.S.C. § 841(b)(1)(A)(vii). Mr. Aguilar-Lopez's sentence was affirmed on appeal See ECF No. 240. Mr. Aguilar-Lopez subsequently challenged his sentence by means of a motion to vacate his sentence under 28 U.S.C. § 2255, ECF No. 257, and a motion to reduce sentence under 18 U.S.C. § 3582(c)(2), ECF No. 263, but was unsuccessful, see ECF Nos. 261 & 264.

         II. MOTION TO MODIFY SENTENCE AND ASSIGN COUNSEL (ECF NO. 280)

         Mr. Aguilar-Lopez asks the Court to modify his sentence based on a recent decision issued by the Ninth Circuit Court of Appeals, United States v. Ocampo-Estrada, 873 F.3d 661 (9th Cir. 2017). ECF No. 280 at 1. In the alternative, Mr. Aguilar-Lopez asks that the Court appoint counsel to assess whether he is entitled to relief under Ocampo-Estrada.

         In Ocampo-Estrada, the Ninth Circuit held that California Health & Safety Code section 11378 is a divisible statute, for which the modified categorical approach may be used. There, the Ninth Circuit vacated that defendant's sentence because it had been enhanced based on a prior felony drug conviction but the government had failed to prove that the offense in question met the federal definition of a “felony drug offense.” Ocampo-Estrada, 873 F.3d at 663-64. Mr. Aguilar-Lopez argues that based on the holding in Ocampo-Estrada, his own sentence should be vacated because it was similarly enhanced based on a state “felony drug offense.” ECF No. 280 at 1.

         To challenge his sentence in this manner, Mr. Aguilar-Lopez must bring a motion pursuant to § 2255. See 28 U.S.C. § 2255. As mentioned above, however, Mr. Aguilar-Lopez has already brought multiple § 2255 motions, [2] and he has not demonstrated compliance with § 2255(h), which states,

A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain--
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h); see also Rules Governing Section 2255 Proceedings, Rule 9 (“Before presenting a second or successive motion, the moving party must obtain an order from the appropriate court of appeals authorizing the district court to consider the motion . . . .”).

         Further, Mr. Aguilar-Lopez has not suggested how the divisibility of a California statute would affect the validity of his Idaho state conviction. See ECF No. 238 at 73. And - even assuming that Ocampo-Estrada established a new rule of constitutional law that was previously unavailable, and further assuming that such a rule could affect Mr. Agular-Lopez's Idaho conviction - Mr. Aguilar-Lopez would not be entitled to relief. The reason for this is simple: any rule announced in Ocampo-Estrada was not “made retroactive to cases on collateral review by the Supreme Court.” 28 U.S.C. § 2255(h)(2) (emphasis added). In short, Mr. Aguilar-Lopez has failed to satisfy the procedural requirements of 28 U.S.C. § 2255(h) and his substantive arguments lack merit. The Court therefore declines to appoint counsel, see 28 U.S.C. § 2255(g), and denies Mr. Aguilar-Lopez's motion to modify his sentence.

         III. MOTION FOR WRIT OF CORAM NOBIS ...


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