Acosta v. United States

          ORDER

          HONORABLE RANER C. COLLINS SENIOR UNITED STATES DISTRICT JUDGE.

         Pending 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.

         I. Standard of Review: Magistrate's R&R

         The 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.

         II. Procedural History

         There 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 objections.

         Acosta 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).)^[1] 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.^[2] Id.

         Acosta 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.

         On 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.)

         Six and 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.

         The 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.^[3] (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.

         Standard of Review: Time for Filing Habeas Petition

         A 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 ...