Opinion
NO. CR-97-0040 WBS.
June 19, 2007
ORDER
Defendant Leonel Rivera, in propria persona, has filed a "petition for reconsideration of reduction [of] sentence" on the ground that his sentence was enhanced with quantities and other facts not found by the jury, citing United States v. Booker, 543 U.S. 220 (2005).
Rivera files this motion under 18 U.S.C. § 3582(c)(2), which provides, in relevant part, that:
The court may not modify a term of imprisonment once it has been imposed except that — (2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . the court may reduce the term of imprisonment . . . if such reduction is consistent with applicable policy statements issued by the Sentencing Commission.18 U.S.C. § 3582(c)(2). However, Rivera's motion does not point to the Sentencing Commission lowering the relevant sentencing range, but challenges the constitutionality of his sentence, specifically that mandatory guidelines were found unconstitutional and changed in the wake of the Supreme Court's decisions.
Claims such as Rivera's, based on Booker, 543 U.S. 220, andBlakley v. Washington, 542 U.S. 296 (2004), are more properly construed as motions under § 2255. Wyche v. United States, 317 F. Supp. 2d 1, 13 (D.D.C. 2004) (Where "the petitioner essentially claims that the trial court improperly based his sentence on facts that the jury did not determine to be true beyond a reasonable doubt . . . the more appropriate vehicle for this line of attack . . . is a section 2255 motion because that statute provides a mechanism for challenging an illegally imposed sentence.")
Rivera's conviction became final on April 26, 2000, when he was sentenced to a term of 360 months and fine of $20,000, plus a $200 special penalty assessment, for conspiracy and possession with intent to distribute methamphetamine. His first § 2255 motion was denied on June 24, 2005.
The filing of second and successive motions under § 2255 is prohibited unless the petitioner has obtained certification from the Court of Appeals. 28 U.S.C. § 2244; United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998).
The law currently in effect indicates that unless and until defendant receives permission from the Ninth Circuit to file a successive habeas petition, this court cannot consider defendant's further arguments for relief. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) ("The district court correctly recognized that Cooper's petition was 'second or successive' under Section 2244(b). Once it did so, however, it lacked jurisdiction to consider the merits of his petition."). Because defendant has not obtained certification to file a successive motion under § 2255, this court lacks jurisdiction over this motion. Thus, the court cannot grant defendant's motion to correct his sentence because it is procedurally barred.
Further, review of Rivera's successive petition is barred because the Supreme Court has not made Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely, 542 U.S. 296, or Booker, 543 U.S. 220, retroactively applicable to cases on collateral review, as required by 28 U.S.C. § 2244(b)(2)(A). See, e.g., Green v. United States, 397 F.3d 101 (2d Cir. 2005); United States v. Anderson, 396 F.3d 1336 (11th Cir. 2005).
IT IS THEREFORE ORDERED that defendant's motion for a reduction of sentence, filed June 7, 2007, be, and the same hereby is, DENIED.