United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
MCBRYDE UNITED STATES DISTRICT JUDGE.
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.
record in the underlying criminal case reflects the
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. 11.
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
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.
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.
Ground of the Motion
asserts one ground in support of his motion, worded as
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.
1 at PageID 4.
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. ...