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United States v. Tamayo

United States District Court, N.D. Illinois

December 1, 2017

UNITED STATES OF AMERICA
v.
ADELAIDE TAMAYO

          MEMORANDUM OPINION AND ORDER

          Sharon Johnson Coleman United States District Court Judge

         Petitioner, Adelaide Tamayo sets forth two motions. The first seeks to vacate, set aside, or correct her sentence pursuant to Amendment794 to the United States Sentencing Guidelines and 28 U.S.C. § 2255 [1]. Tamayo contends that she should receive a minor role reduction because she was less culpable than her conviction reflects. The second motion petitions this Court for a two-point downward departure pursuant to the United States Sentencing Guidelines 3E1.1 [3] based on Tamayo's assertion of “post-offense rehabilitative efforts.” Both motions are unopposed. For the reasons stated below, this Court denies both motions without an evidentiary hearing.

         Background

         On December 12, 2012, a ten-count indictment No. 11-CR-00899 was filed by a federal Grand Jury charging Adelaide Tamayo and her partners with conspiracy to defraud the United States; unlawful possession of a postal service key; mail theft; and access device fraud in violation of 18 U.S.C. §§ 371, 1704, 1708, and 1029(a)(2). Tamayo initially contested the charges and filed several motions in opposition. (See United States v. Tamayo, 11-CR-00899-1, at Dkt. 16, 82, and 103). Tamayo also failed to appear for hearings twice and subsequently, had warrants issued for her arrest. (See United States v. Tamayo, 11-CR-00899-1, at Dkt. 13 and 53). On March 26, 2014, Tamayo pled guilty to only Count 2 pursuant to a written plea agreement, which decreased her overall criminal liability. (See United States v. Tamayo, 11 CR 00899, at Dkt. 144). District Court Judge Amy St. Eve sentenced Tamayo on November 3, 2014 to ninety-two months imprisonment and imposed a two-year mandatory supervised release. Tamayo did not appeal her conviction or sentence.

         On October 30, 2015, Tamayo filed an unsuccessful Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. §2255. (See Tamayo v. United States, 15 CV 09801, at Dkt. 1 and 10). On October 3, 2016, Tamayo filed the two motions at bar.

         1.Amendment 794 of the United States Sentencing Guidelines and 28 U.S.C. § 2255.

         Petitioner Tamayo seeks relief from her conviction and sentence pursuant to 28 U.S.C. § 2255(a), which allows a prisoner convicted in federal court to move to vacate, set aside, or correct her sentence “on the ground that the sentence was imposed in violation of the Constitution or laws of the United States.” Tamayo's pro se petition is construed liberally to determine whether a claim has been fairly presented. Ward v. Jenkins, 613 F.3d 692, 700 (7th Cir. 2010). Relief under section 2255 is available only in limited circumstances, such as where an error is jurisdictional, constitutional, or there has been a “complete miscarriage of justice.” Harris v. United States, 366 F.3d 593, 594 (7th Cir. 2004). This is “an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Consequently, Congress saw fit to apply “[a] 1-year period of limitation” to a motion brought under this section, which runs from “the date on which the judgement of conviction becomes final.” 28 U.S.C. §2255(f)(1).

         In support of the claim that her sentence violated the law, Tamayo looks to Amendment 794, issued by the United States Sentencing Commission on November 1, 2015, which clarified the commentary to U.S.S.G. §3B1.2 to permit an adjustment for a defendant whose actual involvement makes her “substantially less culpable than the average participant” in comparison to co-participants. U.S.S.G. § 3B1.2, Commentary 3(A); U.S.S.G. Supplement to Appendix C, Section 794. In the United States v. Quintero-Leyva opinion, the Ninth Circuit determined that Amendment 794 could apply retroactively in direct appeals to ensure that courts considered all of the factors in evaluating whether a minor role reduction applied. 823 F.3d 519, 524 (9th Cir. 2016). The Ninth Circuit advised that, accordingly, courts should consider the following factors:

(i) the degree to which the defendant understood the scope and structure of the criminal activity;
(ii) the degree to which the defendant participated in planning or organizing the criminal activity;
(iii) the degree to which the defendant exercised decision-making authority or influenced the exercise of decision-making authority;
(iv) the nature and extent of the defendant's participation in the commission of the criminal activity, including the acts the defendant performed and the responsibility and discretion the defendant had in performing those acts; and
(v) the degree to which the defendant stood to benefit from the ...

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