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Barragan v. United States

United States District Court, W.D. North Carolina, Charlotte Division

April 23, 2018

JUAN CARLOS BARRAGAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Graham C. Mullen United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1).

         I. BACKGROUND

         A jury found Petitioner guilty in the underlying criminal case of: Count (1), conspiracy to possess with intent to distribute marijuana and cocaine; Count (2), possession with intent to distribute marijuana and aiding and abetting others; and Count (5), using and carrying a firearm during and in relation to a drug trafficking crime. (3:03-cr-231, Doc. No. 597). The Court sentenced him to a total of 352 months' imprisonment: 240 months for Count (1), 250 months for Count (2), concurrent, and 60 months as to Count (5), consecutive. (Id.). The Fourth Circuit Court of Appeals affirmed, United States v. Barragan, 222 Fed.Appx. 257 (4th Cir. 2007), and the United States Supreme Court denied certiorari, Barragan v. United States, 552 U.S. 939 (2007).

         On September 16, 2008, Petitioner filed a § 2255 Motion to Vacate and supplement that the Court denied on the merits, case number 3:08-cv-425. Barragan v. United States, 2011 WL 159580 (W.D. N.C. Jan 18, 2011). The Fourth Circuit denied a certificate of appealability and dismissed the appeal. United States v. Barragan, 462 Fed.Appx. 338 (4th Cir. 2012).

         On January 13, 2016, the Court granted Petitioner's Motion for Sentence Reduction under 18 U.S.C. § 3582(c)(2) pursuant to Amendment 782 of the United States Sentencing Guidelines, and reduced his total sentence to 295 months' imprisonment. (3:03-cr-231, Doc. No. 738).

         Petitioner filed the instant § 2255 Motion to Vacate, his second, on July 24, 2017. He argues that his sentence should be reviewed in light of Johnson v. United States, 135 S.Ct. 2551 (2015), and Dean v. United States, 137 S.Ct. 1170 (2017).

         II. STANDARD OF REVIEW

         Pursuant to 28 U.S.C. § 2255, a prisoner in federal custody may move the court which imposed his sentence to vacate, set aside, or correct the sentence if it was imposed in violation of federal constitutional or statutory law, was imposed without proper jurisdiction, is in excess of the maximum authorized by law, or is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). However, “[a] second or successive motion must be certified...by a panel of the appropriate court of appeals to contain” either:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.

28 U.S.C. § 2255(h).

         “The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.” 28 U.S.C. § 2244(b)(3)(C). In the absence of pre-filing authorization, a district court lacks jurisdiction to consider an application containing abusive or repetitive claims. United States v. Winestock, 340 F.3d 200, 205 (4th Cir. 2003).

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the argument presented by the Petitioner can be ...


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