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Villicana v. United States

United States District Court, N.D. Texas, Dallas Division

December 3, 2019

LIONEL JUBENAL VILLICANA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         Came on for consideration the motion of Lionel Jubenal Villicana, movant, to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. The court, having considered the motion, the government's response, the reply, the record in the underlying criminal case, No. 4:12-CR-158-A, styled "United States v. Lionel Jubenal Villicana," and applicable authorities, finds that the motion must be dismissed as untimely.

         I. Background

         The record in the underlying criminal case reflects the following:

         On July 18, 2012, movant was named in a one-count indictment charging him with possession with intent to distribute more than 50 kilograms of marijuana, in violation of 21 U.S.C. § 841(a)(1). CR Doc.[1] 11.

         On August 31, 2012, movant appeared before the court with the intent to enter a plea of guilty to the offense charged without benefit of a plea agreement. CR Doc. 17. Movant and his attorney signed a factual resume setting forth the elements of the offense, the maximum penalty movant faced, and the stipulated facts supporting movant's guilt. CR Doc. 18. Under oath, movant stated that no one had made any promise or assurance of any kind to induce him to plead guilty. Further, movant stated his understanding that the guideline range was advisory and was one of many sentencing factors the court could consider; that the guideline range could not be calculated until the presentence report ("PSR") was prepared; the court could impose a sentence more severe than the sentence recommended by the advisory guidelines and movant would be bound by his guilty plea; movant was satisfied with his counsel and had no complaints regarding his representation; and, movant and counsel had reviewed the factual resume and movant understood the meaning of everything in it and the stipulated facts were true.[2]

         The probation officer prepared the PSR, which reflected that movant's base offense level was 36. CR Doc. 21, ¶ 65. He received two-level enhancements for possession of firearms, Id. ¶ 66, maintaining a drug premises, Id. ¶ 67, and importation from Mexico, id. ¶ 68. In addition, he received a four-level adjustment for his role as organizer or leader. Id. ¶ 70. He received a two-level and a one-level decrease for acceptance of responsibility. Id. ¶¶ 74, 75. Based on a total offense level of 43 and a criminal history category of I, movant's guideline imprisonment range was life; however, the statutorily-authorized maximum sentence was 240 months, which became his guideline sentence. Id. ¶ 125. Movant filed objections and the probation officer prepared an addendum to the PSR. CR Doc. 23. The probation officer also prepared a second addendum to correct the guideline range for supervised release. CR Doc. 28.

         On December 17, 2012, the court sentenced movant to a term of imprisonment of 156 months. CR Doc. 33. Movant appealed, CR Doc. 35, and his judgment was affirmed on appeal. United States v. Villicana, 539 Fed.Appx. 524 (5th Cir. 2013). Movant did not file a petition for writ of certiorari.

         II. Ground of the Motion

         Movant asserts one ground in support of his motion, worded as follows:

GROUND ONE: THIS IS A CLAIM OF ACTUAL INNOCENCE BASED ON DAVIS 13 9 S.CT. 2319-2 019. REQUESTING THIS HONORABLE COURT TO VACATE MY 924(C). 2 LEVEL INCREASE SENTENCE.

Doc.[3] 1 at PageID[4] 4.

         III. Analysis

         Movant did not file a petition for writ of certiorari; therefore, his judgment became final on December 4, 2014, when the ninety-day period for filing such a petition expired. Clay v., United States, 537 U.S. 522, 527 (2003). Movant had one year from that date in which to file a motion under 28 U.S.C. ...


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