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United States v. Ramirez

United States District Court, N.D. Illinois, Eastern Division

May 14, 2018

UNITED STATES OF AMERICA, Plaintiff-Respondent,
v.
EDUARDO RAMIREZ, Defendant-Petitioner.

          MEMORANDUM OPINION AND ORDER

          Robert M. Dow, Jr. United States District Judge

         This matter is before the Court on Petitioner Eduardo Ramirez's motions to vacate sentence pursuant to 28 U.S.C. § 2255 [1; 3].[1] For the reasons set forth below, the Court denies Petitioner's § 2255 motion [1; 3] and declines to issue a certificate of appealability.

         I. Background

         On May 1, 2015, Petitioner pled guilty to one count of possessing with the intent to distribute 1, 000 grams or more of mixtures and substances containing heroin, in violation of 21 U.S.C. § 846. Because Petitioner was cooperating with the Government, the Government recommended a term of imprisonment of 90 percent of the low end of the applicable guideline range. As part of Petitioner's plea agreement, Petitioner waived his right to collaterally attack his conviction and sentence, except in limited circumstances. Paragraph 18(b) of Petitioner's plea agreement reads in relevant part:

In addition, if the government makes a motion at sentencing for a downward departure pursuant to Guideline § 5K1.1, defendant also waives his right to challenge his conviction and sentence, and the manner in which the sentence was determined, in any collateral attack or future challenge, including but not limited to a motion brought under Title 28, United States Code, Section 2255. The waiver in this paragraph does not apply to a claim of involuntariness or ineffective assistance of counsel, nor does it prohibit defendant from seeking a reduction of sentence based directly on a change in the law that is applicable to defendant and that, prior to the filing of defendant's request for relief, has been expressly made retroactive by an Act of Congress, the Supreme Court, or the United States Sentencing Commission.

[United States v. Ramirez, No. 11-cr-808, 68, at 13-14.]

         One of the disputed issues at sentencing was whether Petitioner's guidelines range should be increased pursuant to the career offender enhancement. Petitioner had several prior convictions at the time of his sentencing, including a conviction for delivery of a controlled substance and a conviction for one count of residential burglary and four counts of aggravated battery. After the parties briefed the issue, the Court determined that Petitioner was subject to the career offender enhancement, resulting in a guideline range of 262 to 327 months. Specifically, the Court found that Petitioner's conviction for delivery of a controlled substance was a controlled substance offence-a conclusion that went uncontested by Petitioner-establishing one predicate offense for the application of the career offender enhancement. The Court further concluded that residential burglary and aggravated battery under Illinois law were both crimes of violence, establishing a second predicate offense for the application of the career offender enhancement.[2]The Court then imposed a sentence of 156 months in the custody of the Bureau of Prisons, five-years of supervised release, and a special assessment of $100.

         On June 23, 2017, Petitioner filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 in his criminal case. [United States v. Ramirez, No. 11-cr-808, 91.] Petitioner then filed a civil case using the same motion filed in his criminal case [United States v. Ramirez, No. 17-cv-5749, 1]. Petitioner filed the same motion a second time in the same civil case [3]. Given that Petitioner filed a civil case, the Court struck Petitioner's motion in his criminal case as moot. [United States v. Ramirez, No. 11-cr-808, 92.]

         Pending before the Court is the motion to vacate sentence pursuant to 28 U.S.C. § 2255 filed in Petitioner's civil No. 17-cv-5749. Petitioner argues that he should be resentenced in light of the Supreme Court's decision in Mathis v. United States, which held that a “state crime cannot qualify as [a predicate offense] if its elements are broader than those of a listed generic offense.”[3] 136 S.Ct. 2243, 2251 (2016). Specifically, Petitioner argues that his conviction for distribution of a controlled substance and his conviction for residential burglary, “when viewed through the lens of Mathis, would not be considered” a crime of violence or a controlled substance offense “for the purposes of applying the career offender guideline in [Petitioner's] case.”[4] [1, at 4; 3, at 4.]

         II. Legal Standard

         The Seventh Circuit has stressed that “relief under § 2255 is an extraordinary remedy because it asks the district court essentially to reopen the criminal process to a person who already has had an opportunity for full process.” Almonacid v. United States, 476 F.3d 518, 521 (7th Cir. 2007). Under § 2255, relief “is available only when the ‘sentence was imposed in violation of the Constitution or laws of the United States, ' the court lacked jurisdiction, the sentence was greater than the maximum authorized by law, or it is otherwise subject to collateral attack.” Torzala v. United States, 545 F.3d 517, 521 (7th Cir. 2008) (quoting 28 U.S.C. § 2255). A § 2255 motion is not a substitute for a direct criminal appeal. See Varela v. United States, 481 F.3d 932, 935 (7th Cir. 2007) (stating that a § 2255 motion is “neither a recapitulation of nor a substitute for a direct appeal”).

         III. Analysis

         The Government argues that the Court need not address the merits of Petitioner's § 2255 motion, because it is both untimely and barred by the express terms of his plea agreement. The Court agrees. See Cooper v. United States, 199 F.3d 898 (7th Cir. 1999) (declining to address the merits of a time-barred § 2255 motion); Lo v. Endicott, 506 F.3d 572, 576 (7th Cir. 2007) (“Because we find [the] petition for habeas review is time-barred, we need not address the merits of the alleged due process violation.”); Mason v. United States, 211 F.3d 1065, 1069-70 (7th Cir. 2000) (concluding that it was unnecessary to address the merits of claim based on the court's holding that petitioner “waived his right to bring such a claim based on the enforceable terms of his plea agreement”).

         However, for the sake of completeness, the Court also addresses the merits of Petitioner's arguments and finds that Petitioner would not be entitled to relief even if his claim were not untimely and barred by the terms of his plea agreement. Estremera v. United States, 724 F.3d 773, 775 (7th Cir. 2013) (federal statutes of limitations do not affect the court's subject matter jurisdiction, and district courts are free to address non-jurisdictional reasons for rejecting a suit or claim as they see fit); Mason v. United States, 211 F.3d 1065, 1070 (7th Cir. 2000) (briefly discussing merits of petitioner's argument after determining that argument was waived by plea agreement).

         A. Timeliness of § 2255 Motion

         The Government argues that Petitioner's motion should be denied as time-barred. Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a ...


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