United States v. Herrera , 634 F. App'x 670 ( 2016 )

FILED
United States Court of Appeals
Tenth Circuit
February 5, 2016
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 15-6160
(D.C. No. 5:92-CR-00209-D-1)
RAFAEL ANTONIO HERRERA, (W.D. of Okla.)
Defendant - Appellant.
ORDER AND JUDGMENT *
Before TYMKOVICH, Chief Judge, HARTZ, and MORITZ, Circuit Judges. **
Rafael A. Herrera appeals the district court’s denial of his motion for a
sentence reduction under 18 U.S.C. § 3582(c)(2). Section § 3582(c)(2) allows a
court to modify a term of imprisonment where the sentencing range has been
lowered. Herrera acknowledges that his guidelines range has not been lowered,
but instead claims that his sentence violates the Eighth Amendment. We have no
*
This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
authority to grant relief on Herrera’s constitutional claim. As we explained in
United States v. Gay, 771 F.3d 681 (10th Cir. 2014), district courts have limited
jurisdiction under § 3582(c)(2) to reduce sentences. That jurisdiction does not
reach collateral attacks on a defendant’s sentence, whether on constitutional
grounds or otherwise.
In 1992, Herrera pleaded guilty to conspiring (1) to possess with intent to
distribute and (2) to distribute cocaine base, in violation of 21 U.S.C. § 846. The
statutory imprisonment range was ten years to life. 21 U.S.C. § 841(b)(1)(A).
The second revised presentence investigation report (PSR) recommended a
base offense level of 40, considering 13.5 kilograms of cocaine base, 0.25
kilograms of cocaine powder, and one pound of marijuana (270,050.45 kilograms
of marijuana equivalent in total). The PSR recommended a two-level
enhancement for possessing a firearm, a four-level enhancement for a leadership
role, and a two-level enhancement for obstruction of justice, for a total offense
level of 48. The PSR calculated three criminal history points, placing Hererra in
a criminal history category of II. Based on a total offense level of 48 and a
criminal history of II, the guidelines range was life imprisonment. Herrera raised
multiple objections to the PSR, including that the statutory and guidelines
provisions for punishment were excessive and therefore unconstitutional.
The district court sentenced Herrera to life imprisonment. Herrera has
since become a frequent filer to the federal judiciary. He first directly appealed
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the sentence, arguing among other things that the guidelines range violated the
Fifth and Eighth Amendments. United States v. Herrera, 16 F.3d 418 (10th Cir.
1994) (unpublished table opinion). In 1997, 2000, and 2003, Herrera filed
motions pursuant to 28 U.S.C. § 2255, in the latter two motions raising arguments
related to Apprendi v. New Jersey, 530 U.S. 466 (2000). The district court denied
these motions.
Then in 2005, Herrera filed a motion pursuant to 18 U.S.C. § 3582(b)(2)(B)
to modify his sentence based on Apprendi and United States v. Booker, 543 U.S.
220 (2005). The district court denied his motion, and this court dismissed the
appeal as untimely. United States v. Herrera, 178 F. App’x 830 (10th Cir. 2006).
Herrera then filed a motion for a writ of audita querela under the All Writs Act in
2006 arguing that his life sentence is unconstitutional, citing Apprendi and
Booker. The district court concluded it lacked jurisdiction, because § 2255 was
the exclusive remedy, but even if it had jurisdiction, it would deny Herrera’s
motion because Apprendi and Booker do not apply retroactively. See United
States v. Herrera, 216 F. App’x 809 (10th Cir. 2007). We construed his filing as
a motion under § 2255 and denied authorization to file a successive § 2255
motion.
In 2008, Herrera filed a motion pursuant to 18 U.S.C. § 3582(c)(2) seeking
a sentence reduction based on Amendment 706, which modified the Drug
Quantity Table downward two levels for cocaine base. The district court denied
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the motion and we affirmed, as even a two-level decrease in his offense level,
combined with a criminal history category of II, would still result in a life
sentence. United States v. Herrera, 291 F. App’x 886 (10th Cir. 2008).
At issue here is Herrera’s latest motion for a sentence reduction pursuant to
§ 3582(c)(2) based on Amendment 782. That Amendment “reduces by two levels
the [base] offense levels assigned” to certain drug offenses, including distribution
and possession charges. U.S. Sentencing Guidelines Manual app. C., amend. 782
(Supp. 2014).
Herrera argues that the development of federal sentencing law since 1993
makes his sentence grossly disproportionate and therefore unconstitutional.
Herrera, however, acknowledges that we have no authority to hear constitutional
challenges in § 3582(c)(2) proceedings. Gay, 771 F.3d at 683. Such a challenge
is a collateral attack that must be raised in a § 2255 proceeding (which he has
already done three times). See United States v. Price, 438 F.3d 1005, 1006–07
(10th Cir. 2006); United States v. Smartt, 129 F.3d 539, 542–43 (10th Cir. 1997).
“A judge’s resentencing authority is a creation of statute . . . .” United
States v. Pedraza, 550 F.3d 1218, 1220 (10th Cir. 2008). The district court may
only modify a defendant’s sentence “where Congress has expressly granted the
court jurisdiction to do so.” Price, 438 F.3d at 1007. Under § 3582(c), a court
may only grant a sentence reduction for a defendant whose sentencing range “has
subsequently been lowered by the Sentencing Commission . . . .” 18 U.S.C.
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§ 3582(c)(2). As Herrera concedes, applying Amendment 782 would not change
his applicable guidelines range. We do not have jurisdiction under § 3582(c) to
look outside this narrow issue, which ends the matter.
The district court did not err in finding that Herrera was ineligible for a
sentence modification under § 3582(c)(2). We affirm the district court’s order
denying relief.
ENTERED FOR THE COURT
Timothy M. Tymkovich
Chief Judge
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