United States District Court, S.D. Illinois
August 9, 2005.
GABRIEL BUITRON, Petitioner,
DARLENE A. VELTRI and UNITED STATES PAROLE COMMISSION, Respondents.
The opinion of the court was delivered by: DONALD G. WILKERSON, Magistrate Judge
REPORT AND RECOMMENDATION
This matter has been referred to Magistrate Judge Donald G.
Wilkerson by District Judge William D. Stiehl pursuant to
28 U.S.C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and
Local Rule 72.1(a) for a Report and Recommendation on the
Petition for Writ of Habeas Corpus filed by the petitioner,
Gabriel Buitron, on September 20, 2004 (Doc. 1). For the reasons
set forth below, it is RECOMMENDED that petition be DENIED
and that the Court adopt the following findings of fact and
conclusions of law:
FINDINGS OF FACT
On December 5, 1997, the petitioner, Gabriel Buitron, was
convicted in Mexico for the strangulation death of a Mexican
national. He was sentenced to 330 months and transferred to the
United States, pursuant to a treaty, to serve this foreign
sentence. Upon arrival in the United States, the United States
Parole Commission, in accordance with 18 U.S.C. § 4106A(b)(1)(A),
ordered that Buitron serve a sentence of 312 months. This
sentence was imposed on May 16, 2003 after Buitron was
interviewed by a probation officer and a psychologist, after he
participated in two Parole Commission Hearings, and after his
case was reviewed by a Parole Commission attorney. Upon direct
review of the sentence, the Fifth Circuit Court of Appeals, in an unpublished opinion, affirmed the decision of the Parole
Commission and the sentence imposed. Buitron v. United States
Parole Commission, 73 Fed. Appx. 759 (5th Cir. 2003). The
Fifth Circuit found that the Parole Commission did not abuse its
discretion in departing upward from the Sentencing Guidelines.
Buitron, 73 Fed. Appx. at 763-754.
In this petition for a writ of habeas corpus, Buitron asserts
the following question requires review:
Whether Petitioner's right to a jury in accord with
the Sixth Amendment was violated with the imposition
of a term of imprisonment beyond the applicable
guideline range without identifying and proving
beyond a reasonable doubt any particular facts making
Buitron's case extraordinary.
(Petition at p. 1)
Buitron also appears to be asserting that the Parole Commission
does not have the authority to impose a sentence and that he did
not receive notice of these actions against him. (Pet. at p. 6-7)
In his prayer for relief, Buitron seeks to have this Court reduce
his sentence to 97 to 121 months, as the parole officer had
recommended, or that he be immediately released. (Pet. at p. 8)
The respondent argues that Buitron may not challenge his sentence
through a petition for a writ of habeas corpus. Furthermore, the
respondent argues that Buitron may not assert a Sixth Amendment
claim as the Sentencing Commission did not impose a sentence and
merely converted a foreign sentence. As such, the respondent
argues that this petition is without merit.
CONCLUSIONS OF LAW
Buitron has filed this petition was a writ of habeas corpus
pursuant to 28 U.S.C. § 2241. This section provides that this
Court my issue a writ of habeas corpus except that:
(c) The writ of habeas corpus shall not extend to a
prisoner unless (1) He is in custody under or by color of the
authority of the United States or is committed for
trial before some court thereof; or
(2) He is in custody for an act done or omitted in
pursuance of an Act of Congress, or an order,
process, judgment or decree of a court or judge of
the United States; or
(3) He is in custody in violation of the Constitution
or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and
domiciled therein is in custody for an act done or
omitted under any alleged right, title, authority,
privilege, protection, or exemption claimed under the
commission, order or sanction of any foreign state,
or under color thereof, the validity and effect of
which depend upon the law of nations; or
(5) It is necessary to bring him into court to
testify or for trial.
28 U.S.C. § 2241(c).
Buitron was sentenced under the authority given to the United
States Parole Commission pursuant to 18 U.S.C. § 4106A. This code
section provides that the Commission is to determine the release
date of an offender transferred to the United Status pursuant to
a treaty. Review by a Court of Appeals is permissible in the
manner prescribed by 18 U.S.C. § 3742. See
18 U.S.C. § 4106A(2)(B). Section 3742(a) permits review if the sentence is in
violation of the law, if it involves a an incorrect application
of the sentencing guidelines, or if it is otherwise unreasonable.
As an initial matter, Buitron is not challenging the execution of
his sentence, i.e. that he was not given certain good conduct
credit, for example, but rather the imposition of his sentence.
These challenges should have been and could have been brought on
direct appeal before the Fifth Circuit Court of Appeals. This
Court is without jurisdiction to consider any challenge to the
Fifth Circuit's decision and any such claims are subject to res judicata. A challenge also may have been brought as a petition
to alter or amend judgment pursuant to 28 U.S.C. § 2255.*fn1
Such a challenge also would be improperly asserted before this
Court as Buitron was not sentenced by this Court. Buitron has
made no showing that § 2255 is an "inadequate or ineffective"
means to pursue his claim. Therefore, as this Court lacks
jurisdiction to hear this claim, it must fail. See generally
Bishop v. Reno, 210 F.3d 1295
(11th Cir. 2000).
Even if this Court were to entertain this petition,*fn2 it
is clear that he cannot succeed. Buitron's main argument is based
on Apprendi v. New Jersey, 530 U.S. 466 (2000) and, presumably,
United States v. Booker, 125 S.Ct. 738 (2005). Apprendi held
that: "[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt." 530 U.S. at 490. In Booker, the Supreme
Court explicitly held that this principle rendered the Federal
Sentencing Guidelines unconstitutional. 125 S.Ct. at 750. Even if Apprendi and Booker applied to Buitron's sentencing, which it
does not as his already imposed sentence was merely being
converted, these decisions do not apply retroactively on
collateral attack. See Knox v. United States, 400 F.3d 519,
523 (7th Cir. 2005) (Apprendi); Dellinger v. Bowen,
301 F.3d 758, 765 (7th Cir. 2002) (Apprendi); See also
United States v. Schlifer, 403 F.3d 849, 853 (7th Cir.
2005) (noting that challenges to sentences based on the
guidelines must be reviewed under the dictates of Booker only
on cases currently under direct appeal). Buitron's remaining
arguments are wholly without merit.
For the reasons set forth above, it is RECOMMENDED that the
Petition for Writ of Habeas Corpus filed by the petitioner,
Gabriel Buitron, on September 20, 2004 be DENIED (Doc. 1), that
this matter be DISMISSED, and that the Court adopt the
foregoing findings of fact and conclusions of law.
Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 73.1, the
parties shall have ten (10) days after service of this
Recommendation to file written objections thereto. The failure to
file a timely objection may result in the waiver of the right to
challenge this Recommendation before either the District Court or
the Court of Appeals. Snyder v. Nolen, 380 F.3d 279, 284
(7th Cir. 2004); United States v. Hernandez-Rivas,
348 F.3d 595, 598 (7th Cir. 2003).