United States District Court, D. Arizona
HONORABLE RANER C. COLLINS SENIOR UNITED STATES DISTRICT
before the Court is Petitioner Andrew Acosta's Motion
Pursuant to 28 U.S.C. § 2255 (“§ 2255
Motion”). (Doc. 1.) Acosta claims that District Judge
Mary H. Murguia erred when she designated him a “career
offender” under United States Sentencing Guideline
(“U.S.S.G.”) § 4B1.1. He argues that his
prior conviction for conspiracy to traffic narcotics does not
qualify as a “controlled substance offense”
because the state statute, A.R.S. § 13-3408, is not a
categorical match. Id. at 3. In lieu of an answer,
Respondent filed a Motion to Dismiss (Doc. 17), to which
Acosta filed an objection (Doc. 19). On April 29, 2019,
Magistrate Judge Camille D. Bibles issued a Report and
Recommendation (“R&R”) in which she
recommended that this Court deny Acosta's Motion as
untimely. (Doc. 21.) Acosta filed an objection (Doc. 22) and
Respondent a response (Doc. 23). Upon review, the Court will
adopt the Magistrate Judge's R&R, grant the Motion to
Dismiss, and deny Acosta's § 2255 Motion.
Standard of Review: Magistrate's R&R
standard of review of a magistrate judge's R&R is
dependent upon whether or not a party objects: where there is
no objection to a magistrate's factual or legal
determinations, the district court need not review the
decision “under a de novo or any other
standard.” Thomas v. Arn, 474 U.S. 140, 150
(1985). However, when a party objects, the district court
must “determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3); see also
28 U.S.C. § 636(b)(1). Moreover, “while the
statute does not require the judge to review an issue de
novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or
at the request of a party, under a de novo or any
other standard.” Thomas, 474 U.S. at 154.
being no objection to the factual summary of the case, the
Court adopts the Magistrate Judge's recitation of facts,
and merely summarizes as necessary to address Acosta's
was convicted of two counts: Count One, Bank Robbery; and
Count Two, Bank Robbery by Aiding and Abetting. (Docs. 1, 99,
CR-05-0319-PHX-RCC.) The Presentence Report found that Acosta
qualified as a career offender under the U.S.S.G. because of
two prior convictions: one state conviction for conspiracy to
traffic narcotics, and one federal conviction for extortion.
(Doc. 17-1 at 44, CV-17-00765-PHX-RCC (CDB).) At sentencing,
Judge Murguia calculated Acosta's Base Offense Level as
32, which included a seven-level enhancement for being a
career offender. Id. at 28. Acosta objected to the
enhancement, but Judge Murguia denied the objection and found
that Acosta's state court conspiracy to traffic narcotics
conviction was a “controlled substance offense”
and qualified as a predicate offense for the career offender
enhancement. Id. at 25. Judge Murguia sentenced
Acosta to 96 months' imprisonment for Count One and a
consecutive 210 months' incarceration for Count Two.
(Docs. 129, 163, CR-05-01319- RCC-1.CR-05-1319-PHX-RCC.)
Count One was to run consecutive to a 2003 federal sentence
for Bank Robbery by Aiding and Abetting in case number
CR-03-00075-GMS, and Count Two was to run concurrent to the
2003 sentence. Id.
appealed his conviction, claiming he was incorrectly
categorized as a career offender because the Government did
not provide sufficient proof that the prior conspiracy to
traffic narcotics qualified as a “drug trafficking
crime.” (Doc. 17-2 at 51.) He claimed that his
narcotics trafficking conviction should have been evaluated
under “the modified categorical approach established in
Taylor to determine whether the prior conviction
meets the explicit requirements of § 102 of the
Controlled Substances Act.” Id. at 53 (quoting
Taylor v. United States, 495 U.S. 575 (1990)).
Further, he argued “there are seven distinct ways to
commit a violation of A.R.S. § 13-3408 and since the
government failed to provide support of which subsection of
§ 13-3408 under which Mr. Acosta was convicted, the
government failed in its burden of proving that Mr. Acosta is
a career offender.” Id. at 53.
October 15, 2009, the Ninth Circuit issued a memorandum
opinion stating that Acosta was properly sentenced as a
career offender under U.S.S.G. § 4B1.2 because
“[t]he sentencing colloquy and the record of conviction
of the 1992 Arizona drug offense show that [Acosta] pleaded
to conspiracy to sell narcotic drugs. This is a controlled
substance offense.” (Doc. 17-3 at 4-5 (citing
United States v. Hernandez-Valdovinos, 352 F.3d
1243, 1247-48 (9th Cir. 2003).) The United States Supreme
Court denied a writ of certiorari on October 5, 2010. (Doc.
17-4 at 2.)
a half years later, on March 7, 2017, Acosta filed the
instant § 2255 Motion. (Doc. 1 at 4.) He again argues
that he was improperly designated as a career offender.
However, he now claims that two subsequent cases show that
his prior conviction - deemed a “controlled substance
offense” - should have been determined using the
categorical approach rather than the modified categorical
approach. Id. at 3-4.
categorical approach requires a strict element comparison,
and prevents the use of Shepard materials (i.e. the
sentencing colloquy and the record of conviction) to
determine whether the prior conviction may be used for
enhancement. See Descamps v. United States, 570 U.S.
254, 260 (2013). He claims that United States v.
Mathis, 136 S.Ct. 2243 (2016), illustrated that a
sentence could not be enhanced when a state statute is
broader than the federal equivalent. (Doc. 1 at 3.) In
addition, United States v. Sanchez-Fernandez, 669
Fed.Appx. 415 (9th Cir. 2016) demonstrated that A.R.S.
§13-3408 was not a categorical match to the federal
definition of “controlled substance offense”
because it was overbroad; the statute criminalized conduct
that was not included in a federal controlled substance
offense. (Doc. 19 at 2, 4-5.) He contends that
since A.R.S. § 13-3408 is divisible and overbroad, the
Court erred when it used the modified categorical approach.
Id. Furthermore, since the state statue is
overbroad, it could not be considered as a qualifying
controlled substance offense. Id. These two cases,
he asserts, render his prior conviction ineligible for the
career enhancement and his sentencing enhancement unjust.
Id. at 5.
of Review: Time for Filing Habeas Petition
petitioner has one-year to file a federal habeas petition
under § 2255. The one-year time limit:
shall run from 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 making a
motion by such governmental action; (3) the date on which the
right asserted was initially recognized by the Supreme Court,
if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral
review; or ...