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United States v. Torre

United States District Court, S.D. Texas, Corpus Christi Division

May 17, 2017

UNITED STATES OF AMERICA
v.
LEONEL DE LA TORRE

          ORDER DISMISSING MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE, AND DENYING A CERTIFICATE OF APPEALABILITY.

          Janis Graham Jack Senior United States District Judge.

         Leonel De La Torre filed a motion entitled Reconsideration Motion to Reduce Sentence. D.E. 222. De La Torre seeks relief available, if at all, pursuant to a motion to vacate, set-aside or correct sentence. 28 U.S.C. §2255. For the reasons stated herein, the Court dismisses De La Torre's motion and denies him a certificate of appealability.

         De La Torre was sentenced in 2013 to 165 months in the Bureau of Prisons after his guilty plea to conspiracy to commit money laundering and. D.E. 165. He filed a motion to vacate pursuant to 28 U.S.C. § 2255 in 2014. After an evidentiary hearing, the Court denied his motion. D.E. 212, 213. De La Torre next filed a motion to reduce sentence pursuant to Amendment 782 and § 3582(c) that the Court denied in 2015. D.E. 219. Although De La Torre's present motion bills itself as a motion for reconsideration, it seeks different relief.

         MOVANT'S REQUESTED RELIEF

         De La Torre complains that the government breached its plea agreement and he was sentenced in violation of that agreement. He argues that if the government had complied with his plea agreement, his offense level would have been 35, not 41 and eligible for relief pursuant to Amendment 782. Whether the government breached its plea agreement cannot be decided in a § 3582(c) proceeding.

         ANALYSIS

         Because De La Torre's present motion was filed after a previous § 2255 motion, his current motion is a second or successive motion. In pertinent part, 28 U.S.C. § 2255(h) provides:

         A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain -

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

         Where a claim is second or successive, the movant is required to seek, and acquire, the approval of the Fifth Circuit before filing a second § 2255 motion before this Court. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir. 2000); 28 U.S.C. § 2244 (b)(3)(A) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”).

         De La Torre's motion does not indicate that he has sought or obtained permission from the Fifth Circuit to file the present motion. Until he does so, this Court does not have jurisdiction over the motion. Accordingly, his motion (D.E. 222) is DISMISSED as second or successive. United States v. Orozco-Ramirez, 211 F.3d 862, 869 (5th Cir. 2000) (district court properly dismissed second or successive claim).

         CERTIFICATE ...


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