United States v. Jose Valenzuela ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 24 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50356
Plaintiff-Appellee, D.C. Nos. 2:77-cr-01047-CJC-1
2:77-cr-01047-CJC
v.
JOSE GUADALUPE VALENZUELA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted December 10, 2021**
Pasadena, California
Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.
Federal prisoner Jose Guadalupe Valenzuela appeals from the district court’s
denial of his motion for resentencing. We lack jurisdiction and dismiss the appeal.
Valenzuela was originally sentenced in 1978 for conspiracy to possess
heroin with intent to distribute, possession of heroin with intent to distribute,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
aiding and abetting, and operating a continuing criminal enterprise (“CCE”).
Valenzuela received a life sentence for the CCE conviction and lesser concurrent
sentences for his other convictions. We affirmed and noted that there was “no
need to inquire into the propriety of other lesser or equal concurrent sentences
since [Valenzuela’s] prison term [for the CCE count] will remain the same
whatever the resolution of the other sentences might be.” United States v.
Valenzuela, 596 F.2d 1361, 1365 (9th Cir. 1979).
In 1998, the district court partially granted Valenzuela’s 28 U.S.C. § 2255motion and vacated his conspiracy conviction based on new Supreme Court
authority. The CCE conviction and the attendant life sentence remained
undisturbed. Valenzuela appealed, and we affirmed, concluding that the district
court properly decided not to vacate Valenzuela’s CCE conviction. United States
v. Valenzuela, 225 F.3d 665, No. 99-55413, 2000 WL 733603, at *1-2 (9th Cir.
June 7, 2000).
Two decades later, in 2020, Valenzuela filed the instant motion for
resentencing. Valenzuela argued that he should receive a full resentencing,
including exercising his right of allocution to address the court, because back in
1998, he was never resentenced following the partial grant of his § 2255 motion
and vacatur of his conspiracy conviction, which “unbundled” his sentencing
package. The district court denied the motion for resentencing. Relying on
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Troiano v. United States, 918 F.3d 1082, 1087-88 (9th Cir. 2019), the district court
reasoned that a full resentencing was not required because the vacatur of
Valenzuela’s conspiracy conviction had no impact on his overall sentence.
As a preliminary matter, the Government argues that the district court lacked
jurisdiction to consider Valenzuela’s motion for resentencing and that we lack
jurisdiction to entertain this appeal. Although the Government did not contest
jurisdiction in the district court, “lack of jurisdiction is a matter which can be
raised at any time . . . and must be addressed before any consideration of the
merits.” United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014).
“[A] district court does not have inherent power to resentence defendants at
any time.” United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997) (citation
omitted). Valenzuela argues that the district court in 2020 had the authority to
resentence him under 28 U.S.C. § 2255 because his original § 2255 motion was
partially granted in 1998. However, Valenzuela’s original § 2255 proceeding was
final long before Valenzuela filed the instant motion for resentencing. While it
appears that the district court did not enter an amended judgment following his
partially-successful § 2255 motion, Valenzuela already appealed the district court’s
decision regarding his original § 2255 motion. Valenzuela’s reliance our
unpublished decision in United States v. Whitmore, 682 F. App’x 626 (9th Cir.
2017), is misplaced.
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Rather, Valenzuela’s motion for resentencing is properly characterized as an
unauthorized second or successive § 2255 motion. See Balbuena v. Sullivan, 980
F.3d 619, 634-35 (9th Cir. 2020). Therefore, the district court lacked jurisdiction
to consider Valenzuela’s motion for resentencing. See United States v.
Washington, 653 F.3d 1057, 1065 (9th Cir. 2011).
Moreover, since Valenzuela’s motion for resentencing is properly
characterized as a § 2255 motion, it requires a certificate of appealability (“COA”).
See 28 U.S.C. § 2253(c)(1)(B). Valenzuela should have obtained a COA, but did
not and cannot because it is not debatable that the motion was a second or
successive § 2255 motion and Valenzuela did not obtain this court’s authorization
before filing it. See United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001).
DISMISSED.
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