“It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions.”
How later courts described this case
- “It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions.”
- “A district court’s technical application of the Guidelines does not give rise to a constitutional issue cognizable under § 2255.”
- relying upon Slack, 529 U.S. at 483–84
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT October 08, 2020
SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk
CORPUS CHRISTI DIVISION
UNITED STATES OF AMERICA, §
Plaintiff/Respondent, §
§
v. § CRIMINAL NO. 2:17-435
§ CIVIL NO. 2:20-57
EDGAR ARTEAGA-RIOS, §
Defendant/Movant. §
MEMORANDUM OPINION & ORDER
Pending before the Court is Defendant/Movant Edgar Arteaga-Rios’ motion to vacate, set
aside, or correct sentence pursuant to 28 U.S.C. § 2255 and memorandum in support (D.E. 52),
to which the United States of America (the “Government”) responded (D.E. 57), and Movant has
replied (D.E. 58).
I. BACKGROUND
In October 2017, Movant pled guilty to possession with intent to distribute more than 100
kilograms of marijuana. The Presentence Investigation Report (PSR, D.E. 25) assigned Movant a
base offense level of 24. Two levels were deducted under U.S.S.G. § 2D1.1(b)(17) because
Defendant qualified for safety valve, and two levels were added under U.S.S.G. § 3B1.3 because
he used a special skill (commercial driver’s license) to facilitate the offense. Despite pleading
guilty, Movant was not given credit for acceptance of responsibility because he continued to be
involved in criminal conduct, which was contrary to U.S.S.G. § 3E1.1. Specifically, he was
involved in a gang-related assault of two other inmates while awaiting sentencing.
Movant filed written objections to the PSR, arguing that he should have received credit
for acceptance of responsibility because he “was not involved in the assault of the two inmates
on December 16, 2017.” D.E. 29. At sentencing, the Government offered a video showing the
assault from four different angles. The Government also called Major Stacy Galindo of the
Coastal Bend Detention Center, who testified that the video showed Movant kicking another
inmate during the gang fight. Major Galindo was able to specifically identify Movant in the
video and stated that, just before the fight, Movant could be seen meeting with members of the
“security threat group” known as “Paisa.” 3/20/2018 Sent. Tr., D.E. 43, p. 11. The Court
overruled the objection because Movant was “identified as participating in the altercation. And
that clearly indicates he has not withdrawn from criminal activity.” Id. at 33. “It appears to me
that you do not deserve acceptance of responsibility. You never know how a fight like that is
going to end . . . [H]e could have died. You would be standing before some judge for murder.”
Id. at 37–38.
With a base offense level of 24 and a criminal history category of I, Movant’s advisory
Guidelines range was 51–63 months’ imprisonment. Because he qualified for safety valve, he
was not subject to the statutory mandatory minimum sentence of 60 months. Movant was
ultimately sentenced to 51 months’ imprisonment, to be followed by 5 years’ supervised release.
On appeal, Movant argued “that he was entitled to a reduction in his sentence pursuant to
§ 3E1.1 of the Sentencing Guidelines because he accepted responsibility for his crime by timely
pleading guilty and admitting his relevant conduct.” United States v. Arteaga-Rios, 762 F. App’x
177, 177 (5th Cir. 2019) (unpublished). In affirming this Court’s judgment, the Fifth Circuit
wrote:
Arteaga-Rios participated in an assault on other inmates in the detention center in
which he was being held awaiting sentencing.
The district court declined to award an adjustment for acceptance of responsibility
because Arteaga-Rios had not voluntarily withdrawn from criminal conduct. See §
3E1.1, comment. (n.1(B)); United States v. Watkins, 911 F.2d 983, 985 (5th Cir.
1990). The district court’s determination was not without foundation and was not
plainly erroneous. See Watkins, 911 F.2d at 985; United States v. Guerrero-
Robledo, 565 F.3d 940, 946 (5th Cir. 2009).
Id. at 177–78.
The Fifth Circuit’s mandate issued on March 25, 2019. Movant did not file a petition for
a writ of certiorari with the United States Supreme Court. He filed the present motion on
February 10, 2020. It is timely.
II. MOVANT’S ALLEGATIONS
Movant’s § 2255 motion raises the same claim he raised at sentencing and on appeal:
“[T]he District Court incorrectly applied the sentencing guidelines by denying [Movant] a 3-
level reduction in the offense level for acceptance of responsibility.” D.E. 52-1, p. 10.
III. 28 U.S.C. § 2255
There are four cognizable grounds upon which a federal prisoner may move to vacate, set
aside, or correct his sentence: (1) constitutional issues, (2) challenges to the district court’s
jurisdiction to impose the sentence, (3) challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that the sentence is otherwise subject to collateral attack. 28
U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). “Relief under 28
U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of
injuries that could not have been raised on direct appeal and would, if condoned, result in a
complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
IV. ANALYSIS
Movant alleges that the Court misapplied the Sentencing Guidelines in denying him
credit for acceptance of responsibility. “Misapplications of the Sentencing Guidelines . . . are
not cognizable in § 2255 motions.” United States v. Williamson, 183 F.3d 458, 462 (5th Cir.
1999) (citing United States v. Segler, 37 F.3d 1131, 1134 (5th Cir. 1994) (“A district court’s
technical application of the Guidelines does not give rise to a constitutional issue cognizable
under § 2255.”)). Moreover, because this claim was previously raised and denied on direct
appeal, Movant may not relitigate it now in a § 2255 motion. See United States v. Kalish, 780
F.2d 506, 508 (5th Cir. 1986) (“It is settled in this Circuit that issues raised and disposed of in a
previous appeal from an original judgment of conviction are not considered in § 2255
Motions.”). Accordingly, this claim is denied.
V. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. §
2253(c)(1)(A). Although Movant has not yet filed a notice of appeal, the § 2255 Rules instruct
this Court to “issue or deny a certificate of appealability when it enters a final order adverse to
the applicant.” RULE 11, § 2255 RULES.
A Certificate of Appealability (COA) “may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA
determination under § 2253(c) requires an overview of the claims in the habeas petition and a
general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To warrant
a grant of the certificate as to claims denied on their merits, “[t]he petitioner must demonstrate
that reasonable jurists would find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This standard requires a §
2255 movant to demonstrate that reasonable jurists could debate whether the motion should have
been resolved differently, or that the issues presented deserved encouragement to proceed
further. United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (relying upon Slack, 529 U.S.
at 483–84). As for claims that the district court rejects solely on procedural grounds, the movant
must show that “jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
The Court concludes that Movant cannot establish at least one of the Slack criteria. That
is, reasonable jurists could not debate the Court’s resolution of his claims, nor do these issues
deserve encouragement to proceed. See Jones, 287 F.3d at 329. Accordingly, Movant is not
entitled to a COA as to his claims.
VI. CONCLUSION
For the foregoing reasons, Movant’s motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 (D.E. 52) is DENIED, and he is DENIED a Certificate of
Appealability.
It is so ORDERED this 6" day of October, 2020.
JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE