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Diaz v. United States

United States District Court, E.D. Texas, Tyler Division

May 11, 2018

FERMIN DIAZ, #13330-078
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION ADOPTING REPORT AND RECOMMENDATION AND ENTERING FINAL JUDGMENT

          Ron Clark, United States District Judge

         Movant Fermin Diaz, an inmate confined at the Adams County Correctional Institution in Mississippi, proceeding pro se, filed the above-styled motion to vacate, set aside, or correct his federal sentence under 28 U.S.C. § 2255. This Court ordered the matter be referred to the United States Magistrate Judge.

         I. Procedural Background

         Diaz is in federal custody pursuant to a conviction for one count of conspiracy to possess with intent to distribute and the distribution of more than ten kilograms of methamphetamine under 21 U.S.C. § 846 and one count of the use and carrying a firearm during a drug trafficking crime under 18 U.S.C. § 924(c), in case number 6:06-cr-46. On November 9, 2006, Diaz entered a guilty plea in accordance with a negotiated plea agreement. Pursuant to the agreement, on June 12, 2007, Diaz was sentenced to 135 months' imprisonment for the conspiracy charge and 60 months' imprisonment on the firearm charge-to be served consecutively. The formal judgment and sentence was entered on June 20, 2007. See 6:06-cr-46, Dkt. #752. Diaz did not file a direct appeal.

         On June 15, 2015, the Court reduced Diaz's sentence for the conspiracy count to the statutory minimum of 120 months' imprisonment under 18 U.S.C. § 3582 after a retroactive amendment to the sentencing guidelines for drug offenses. See 6:06-cr-46, Dkt. #849. Consequently, Diaz is serving a total of fifteen years' imprisonment.

         Diaz filed this instant section 2255 motion in August 2016. He sought a downward departure under 18 U.S.C. § 924(e)(2). He cited Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), in support of his motion. Diaz also maintains that it “was very clear that the firearm [did] not belong to petitioner and also he was indicted by [a] unreliable witness.” Diaz also argued that under Bailey v. United States, 516 U.S. 137 (1995), Court must vacate his convictions for the “use” of a firearm during the drug trafficking offense. Specifically, he maintained that “it was very clear that the firearms [did not] belong to petitioner” and that “evidence of the proximity and accessibility of the firearm to the drug or drug proceeds is not alone sufficient to support a conviction for ‘use' under the statute.”

         After a review of the pleadings and the underlying criminal record, the Magistrate Judge issued a Report recommending that, because his motion was both untimely and meritless, Diaz's motion should be dismissed. Diaz has filed timely objections, (Dkt. #10).

         II. Diaz's Objections

         In his objections, Diaz maintains that his plea does not “qualify as intelligent” because he did not receive “real notice” of the charge against him. He also reiterates his main argument within his section 2255 motion: The firearm used during the crime did not belong to him and the State did not prove “active employment” of the firarm.

         III. Legal Standards

         Section 2255 is “fundamentally different from a direct appeal.” United States v. Drobny, 955 F.2d 990, 994 (5th Cir. 1992). Section 2255 “provides relief for a petitioner who can establish that either (1) his sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is subject to collateral attack.” U.S. v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1999) (citing United States v. Faubion, 19 F.3d 226, 232 (5th Cir. 1994)).

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996, which imposed a number of habeas corpus reforms, an inmate must file a section 2255 motion within one year of the latest of:

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from ...

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