Opinion
No. 2:14-cr-0238 GEB CKD
02-13-2017
UNITED STATES OF AMERICA, Respondent, v. ARTURO ALCAZAR-TAPIA, Movant.
FINDINGS AND RECOMMENDATIONS
Movant, a United States prisoner proceeding pro se, has filed a motion for habeas corpus relief under 28 U.S.C. § 2255. He is serving a term of 87 months imprisonment imposed on November 17, 2015 following pleas of guilty to: (1) conspiracy to manufacture and possess marijuana with the intent to deliver (21 U.S.C. §§841(a)(1) & 846); and (2) depredation of public lands and resources (18 U.S.C. § 1361).
Movant argues he is entitled to a sentence reduction with respect to his marijuana conviction pursuant to Amendment 782 of the United States Sentencing Guidelines (USSG). Amendment 782, which became effective on November 1, 2014, reduced certain base offense levels under the USSG by 2. As indicated above, movant was sentenced on November 17, 2015, after Amendment 782 was enacted. A review of movant's Presentence Investigation Report (ECF No. 82) indicates that movant was held accountable for 2,177.2 kilograms of marijuana. That ///// being the case, movant was assigned a "base offense level" of 30. Under USSG § 2D1.1, this is base level applicable after Amendment 782 was enacted.
Counsel for respondent asserts the court should construe the motion before the court as a motion for reduction of sentence under 18 U.S.C. § 3582 rather that § 2255 motion. Considering the foregoing, that appears to be unnecessary. --------
For these reasons, IT IS HEREBY RECOMMENDED that:
1. Movant's August 29, 2016 motion for habeas corpus relief under 28 U.S.C. § 2255 (ECF No. 97) be denied; and
2. The Clerk of the Court be directed to close the companion civil case No. 2:16-cv-2072 GEB CKD.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2255 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time waives the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: February 13, 2017
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 1
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