United States District Court, E.D. North Carolina, Eastern Division
C. DEVER III UNITED STATES DISTRICT JUDGE
4, 2017, Areli Renteria-Chavez ("Renteria-Chavez"),
moved under 28 U.S.C. § 2255 to vacate, set aside, or
correct his 97-month sentence based on the alleged
miscalculation of his advisory guideline range under Dean
v. United States, 137 S.Ct. 1170 (2017). See [D.E. 37].
On July 20, 2017, Renteria-Chavez filed an amended section
2255 motion and made the same claim [D.E. 39]. On March 26,
2018, the government moved to dismiss Renteria-Chavez's
motions for failure to state a claim upon which relief can be
granted [D.E. 43, 44]. On April 6, 2018, Renteria-Chavez
replied [D.E. 46]. As explained below, the court grants the
government's motion to dismiss and dismisses
Renteria-Chavez's section 2255 motions.
March 23, 2015, pursuant to a written plea agreement,
Renteria-Chavez pleaded guilty to being an illegal alien in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(5) and 924(a)(2) (count one) and
aggravated illegal reentry by an alien in violation of 8
U.S.C. § 1326 [D.E. 1, 21, 22]. On September 1, 2015, at
Renteria-Chavez's sentencing hearing, the court
calculated Renteria-Chavez's advisory guideline range to
be 78 to 97 months' imprisonment based on a total offense
level of 27 and criminal history category of JJ. See [D.E.
35]. After considering all relevant factors under 18 U.S.C.
§ 3553(a), the court sentenced Renteria-Chavez to 97
months' imprisonment on each count to run concurrently.
See [D.E. 33, 34]. Renteria-Chavez did not appeal.
motion to dismiss under Rule 12(b)(6) of the Federal Rules of
Civil Procedure for "failure to state a claim upon which
relief can be granted" tests a complaint's legal and
factual sufficiency. See Ashcroft v. Iqbal, 556 U.S.
662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 562-63, 570 (2007); Coleman v. Md. Court of
Appeals, 626 F.3d 187, 190 (4th Cir. 2010),
affd. 566 U.S. 30 (2012); Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per
curiam). In considering a motion to dismiss, a court need not
accept a complaint's legal conclusions. See,
e.g., Iqbal, 556 U.S. at 678. Similarly, a court
"need not accept as true unwarranted inferences,
unreasonable conclusions, or arguments."
Giarratano, 521 F.3d at 302 (quotation omitted); see
Iqbal, 556 U.S. at 677-79. Moreover, a court may
take judicial notice of public records without converting a
motion to dismiss into a motion for summary judgment.
See, e.g., Fed.R.Evid. 201; Tellabs.
Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308,
322 (2007); Philips v. Pitt Cty. Mem'l Hosp.,
572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section
2255 motion, the court is not limited to the motion itself.
The court also may consider "the files and records of
the case." 28 U.S.C. § 2255(b); see United
States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).
Likewise, a court may rely on its own familiarity with the
case. See. e.g., Blackledge v.
Allison, 431 U.S. 63, 74 n.4 (1977); United States
v. Dvess, 730 F.3d 354, 359-60 (4th Cir. 2013).
2255(f) contains a one-year statute of limitations. Section
2255(f) provides that the one-year clock is triggered by one
of four conditions, whichever occurs last:
(1) the date on which the judgment of conviction becomes
(2) the date on which the impediment to making a motion
created by governmental action in violation of the
Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such
(3) 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 retroactively
applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4); see Johnson v. United
States, 544 U.S. 295, 299-300 (2005); Whiteside
v. United States, 775 F.3d 180, 182-83 (4th Cir.
2014) (en banc). A criminal appeal must be filed within
fourteen days after the court enters judgment of conviction.
See Fed. R. App. P. 4(b)(1)(A)(i). If a defendant does not
appeal his judgment, a conviction becomes final for purposes
of section 225 5' s statute of limitations when the
fourteen-day appeal period expires. See Clay v. United
States, 537 U.S. 522, 532 (2003). But cf United
States v. Sanders, 247 F.3d 139, 142 (4th Cir. 2001)
(holding that a conviction becomes final for purposes of
section 2255's statute of limitations on the date
judgment is entered if a defendant fails to file a direct
September 4, 2015, the court entered Renteria-Chavez's
judgment of conviction [D.E. 34]. Therefore, under
Clay, his judgment became final on September 18,
2015, and his period within which to file a section 2255
motion ended on September 18, 2016. See, e.g.,
Clay, 537 U.S. at 532. Renteria-Chavez, however, did not
file his section 2255 motion until May 4, 2017. See [D.E.
37]. Thus, Renteria-Chavez's section 2255 motion is
untimely under section 2255(f). Furthermore, Renteria-Chavez
has not plausibly alleged that any governmental action
prevented him from filing a timely motion, that his motion is
based on a right newly recognized by the Supreme Court, or
that his motion is based on facts that could not have been
discovered earlier through the exercise of due diligence.
Accordingly, Renteria-Chavez's section 2255 motion is
untimely under section 2255(f).
Renteria-Chavez may not bring his claim under section 2255. A
petitioner generally may not use section 2255 to challenge
the calculation of his advisory guideline range. See
United States v. Foote, 784 F.3d 931, 936-40 (4th
Cir. 2015); United States v. Pregent, 190 F.3d 279,
283-84 (4th Cir. 1999); see also Whiteside, 775 F.3d
at 183-87; United States v. Mikalajunas, 186 F.3d
490, 495-96 (4th Cir. 1999). Thus, the claim fails.
Renteria-Chavez's plea agreement contains an appellate
waiver. See [D.E. 23] ¶ 2(c). In ...