Jose Alberto Mora-Higuera v. United States , 914 F.3d 1152 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 17-3638
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Jose Alberto Mora-Higuera
lllllllllllllllllllllPetitioner - Appellant
v.
United States of America
lllllllllllllllllllllRespondent - Appellee
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Appeal from United States District Court
for the District of Minnesota - Minneapolis
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Submitted: October 19, 2018
Filed: January 31, 2019
[Published]
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Before SHEPHERD, KELLY, and STRAS, Circuit Judges.
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PER CURIAM.
In 2000, Jose Alberto Mora-Higuera pleaded guilty to four counts related to
methamphetamine and cocaine distribution and one count of unlawful reentry after
removal. The district court classified Mora-Higuera as a career offender under United
States Sentencing Guidelines § 4B1.1 and sentenced him to 292 months’ imprison-
ment. As relevant here, the district court determined that one of Mora-Higuera’s
convictions—California second-degree robbery—qualified as a predicate “crime of
violence” under § 4B1.2 of the Guidelines. We affirmed Mora-Higuera’s sentence
on appeal. See United States v. Mora-Higuera, 269 F.3d 905, 912–13 (8th Cir.
2001).1 In June 2016, he moved to correct his sentence under 28 U.S.C. § 2255 based
on Johnson v. United States, 135 S. Ct. 2551 (2015), but the district court2 denied his
motion as untimely.
We review de novo the district court’s dismissal of a § 2255 motion based on
the statute of limitations. E.J.R.E. v. United States, 453 F.3d 1094, 1097 (8th Cir.
2006). Motions under § 2255 are subject to a one-year limitations period. See 28
U.S.C. § 2255(f). In practice, this usually means that a prisoner must file a motion
within one year of “the date on which the judgment of conviction becomes final.”
§ 2255(f)(1). “He may file at a later date, however, if the motion comes within one
year of ‘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
1
The district court subsequently reduced Mora-Higuera’s sentence to 262
months’ imprisonment based on Amendment 782 to the Guidelines. See 18 U.S.C.
§ 3582(c)(2). Mora-Higuera qualified for a reduction because the drug quantity table
of § 2D1.1, rather than his career-offender status, set his original total offense level.
See United States v. Small, 599 F.3d 814, 815 (8th Cir. 2010) (“The career-offender
provision requires that the total offense level be the greater of the offense level in
§ 4B1.1(b), or the offense level otherwise applicable under Chapters Two and Three
of the guidelines based on the underlying conduct.”); see also United States v.
Thomas, 775 F.3d 982, 982–83 (8th Cir. 2014) (per curiam) (explaining that
Amendment 782 is applicable if the offense level is calculated under § 2D1.1, but
inapplicable if it is based on career-offender status). After Amendment 782, however,
both Mora-Higuera’s total offense level and his criminal history category were driven
by his career-offender status.
2
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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retroactively applicable to cases on collateral review.’” Russo v. United States, 902
F.3d 880, 882 (8th Cir. 2018) (quoting 28 U.S.C. § 2255(f)(3)).
Mora-Higuera argues that his motion is timely under § 2255(f)(3) because he
filed it within one year of the Supreme Court’s decision in Johnson, which invalidated
the residual clause of the Armed Career Criminal Act. Mora-Higuera argues that
Johnson also effectively invalidated the residual clause of § 4B1.2(a)(2) of the
mandatory Guidelines that were in effect at the time of his original sentencing.
Mora-Higuera’s arguments are foreclosed by Russo. In that case, we held that
the right Mora-Higuera asserts here—“a right under the Due Process Clause to be
sentenced without reference to the residual clause of § 4B1.2(a)(2) under the
mandatory guidelines”—was “not dictated by Johnson.” 902 F.3d at 882–83. To the
contrary, we reasoned, “[i]t is reasonably debatable whether Johnson’s holding
regarding the ACCA extends to the former mandatory guidelines,” and, accordingly,
the petitioner in that case could not benefit from a renewed limitations period under
§ 2255(f)(3). Id. at 883. So too here.
The judgment of the district court is affirmed.
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