Navarro-Ramirez v. United States

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Hugo Alejandro Navarro-Ramirez, No. CV-20-00988-PHX-GMS (JZB) 10 Plaintiff, ORDER v. United States of America, 13 Defendant.

16 Pending before the Court is a Report and Recommendation (R&R) (Doc. 5) issued by Magistrate Judge John Z. Boyle recommending that the Court deny Petitioner Hugo Alejandro Navarro-Ramirez’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody, (Doc. 1). Also before the Court is Petitioner’s Motion Pursuant to 18 U.S.C. 3553(F) and 3582(c)(2), which the Court construes as an objection to the R&R. (Doc. 6.) For the following reasons, the Court adopts the R&R and denies Petitioner’s motion.

23 BACKGROUND 24 Because no party has objected to the procedural background set forth in the R&R, the Court adopts the background as set forth therein: On June 14, 2016, a federal grand jury indicted [Petitioner] on nine firearm- 27 related offenses, including conspiracy, multiple counts of False Statement During the Purchase of a Firearm, Alien in Possession of a Firearm, and 28 Possession of an Unregistered Firearm. (CR Doc. 3.) The charges resulted 1 from [Petitioner’s] involvement as a recruiter and organizer in the illegal purchase and transportation of firearms to Mexico. (CR Doc. 105.)

3 On July 11, 2017, [Petitioner] pleaded guilty under a Rule 11(c)(1)(C) Plea Agreement to Conspiracy (Count 1) and Possession of an Unregistered Firearm (Count 9). (CR Doc. 110 at 1.) Under the terms of the Plea 5 Agreement, [Petitioner] waived his right to appeal and collaterally attack the judgment; however, he preserved his right to allege ineffective assistance of counsel. (Id. at 4–5.)

On December 13, 2017, the Court sentenced [Petitioner] to 60 months of imprisonment on Count 1 and 87 months on Count 9, to run concurrently, 9 followed by 36 months of supervised release. (CR Doc. 111 at 1.) At sentencing, the Court advised [Petitioner] of his limited appeal rights. (Id. at 10 4.) [Petitioner] did not file any notice of appeal.

11 (Doc. 5 at 1–2.)

12 DISCUSSION 13 I. Legal Standard 14 A “district judge may refer dispositive pretrial motions, and petitions for writ of habeas corpus, to a magistrate [judge], who shall conduct appropriate proceedings and recommend dispositions.” Thomas v. Arn, 474 U.S. 140, 141 (1985); see also 28 U.S.C. § 636(b)(1)(B); Estate of Connors v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993). Any party “may serve and file written objections” to a report and recommendation by a magistrate judge. 28 U.S.C. § 636(b)(1). “A judge of the court shall make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made.” Id. District courts, however, are not required to conduct “any review at all . . .

22 of any issue that is not the subject of an objection.” Arn, 474 U.S. at 149. A district judge “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].” 28 U.S.C. § 636(b)(1).

25 II. Analysis 26 Petitioner asserts that his sentence is improper because his attorney promised a lesser sentence. However, the Magistrate Judge correctly found Petitioner’s §2255 motion untimely. Under 28 U.S.C. § 2255(f), “there is a one-year period of limitation to file a collateral attack on a federal conviction that runs from the latest of four events, including the date on which the judgment of conviction becomes final.” United States v. Gilbert, 807 3 F.3d 1197, 1199 (9th Cir. 2015). If a petitioner does not pursue a direct appeal, “the conviction becomes final when the time for filing a direct appeal expires.” Id. The deadline for filing a notice of appeal is 14 days after entry of final judgment. See Fed. R. App. P. 4(b)(1)(A). Once the time for filing a direct appeal expires, § 2255(f)’s limitations period is triggered. Gilbert, 807 F.3d at 1200.

8 Here, there is no dispute that Petitioner did not file a direct appeal. Accordingly, his sentence became final on December 27, 2017 and the one-year statute of limitations ended on December 27, 2018. As Petitioner’s §2255 motion was not filed until May 20, 2020, the motion is untimely and consequently denied.1 12 CONCLUSION 13 Having reviewed the record as it relates to Petitioner’s objection de novo, the Court accepts the R&R and denies Petitioner’s objection. Accordingly, 15 IT IS THEREFORE ORDERED that Petitioner Hugo Alejandro Navarro- Ramirez’s Motion Pursuant to 18 U.S.C. 3553(F) and 3582(C)(2) (Doc. 6) is DENIED.

17 IT IS FURTHER ORDERED that the Report and Recommendation of the Magistrate Judge John Z. Boyle (Doc. 5) is ADOPTED.

19 IT IS FURTHER ORDERED that Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. 1) is DENIED AND DISMISSED WITH PREJUDICE.

22 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this action and enter judgment accordingly.

24 / / / / / / / / / 1 To the extent Petitioner brings his motion pursuant to 18 U.S.C. § 3582(C), Petitioner does not articulate grounds for relief.

1 IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing 2|| Section 2255 Cases, in the event Petitioner files an appeal, the Court declines to issue a || certificate of appealability because reasonable jurists would not find the Court’s procedural 4|| ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

5 Dated this 3rd day of August, 2021.

6 W □□ 5 A Whacrsay Sooo) 8 Chief United states District Judge -4-