In Re: Salas, No. 14-50674 (5th Cir. 2018)

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In accordance with a written plea agreement, Salas is serving a 288-month federal sentence for trafficking in cocaine and heroin. The Fifth Circuit denied Salas, authorization to file a second or successive 28 U.S.C. 2255 motion. None of Salas’s proposed claims are based on newly discovered evidence. The court rejected a claim that he is entitled to relief under Burrage v. United States (2014). In Burrage, the Supreme Court held that, in order to apply the mandatory sentence under 21 U.S.C. 841(b)(1)(C) for a death resulting from the defendant’s drug trafficking, it is necessary to establish beyond a reasonable doubt that the death would not have occurred “but for” the defendant’s conduct. However, Burrage was decided on direct appeal; nothing suggests that the Supreme Court has made Burrage retroactive to cases on collateral review. In addition, the Burrage Court was interpreting a statute and did not announce a new rule of constitutional law.

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Case: 14-50674 Document: 00514433391 Page: 1 Date Filed: 04/17/2018 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 14-50674 A True Copy Certified order issued Apr 17, 2018 In re: MICHAEL LARA SALAS, Movant Clerk, U.S. Court of Appeals, Fifth Circuit Motion for an order authorizing the United States District Court for the Western District of Texas to consider a successive 28 U.S.C. § 2255 motion Before SMITH, HAYNES, and WILLETT, Circuit Judges. PER CURIAM: Michael Lara Salas, federal prisoner # 54427-080, seeks authorization to file a second or successive 28 U.S.C. § 2255 motion. In accordance with a written plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C), Salas is serving a 288-month sentence for trafficking in cocaine and heroin. None of Salas’s proposed claims are based on newly discovered evidence. See § 2255(h)(1). In pertinent part, Salas asserts that he is entitled to relief under Burrage v. United States, 134 S. Ct. 881 (2014). In Burrage, the Supreme Court held that, in order to apply the mandatory sentence under 21 U.S.C. § 841(b)(1)(C) for a death resulting from the defendant’s drug trafficking, it is necessary to establish beyond a reasonable doubt that the death would not have occurred “but for” the defendant’s conduct. Burrage, 134 S. Ct. at 887-92. However, Case: 14-50674 Document: 00514433391 Page: 2 Date Filed: 04/17/2018 No. 14-50674 Burrage was decided on direct appeal, and nothing suggests that the Supreme Court has made Burrage retroactive to cases on collateral review. See § 2255(h)(2). Moreover, in Burrage the Court was interpreting a statute, § 841(b)(1)(C), and did not announce a new rule of constitutional law. See Burrage, 134 S. Ct. at 885-92; Santillana v. Upton, 846 F.3d 779, 783 (5th Cir. 2017) (addressing savings clause issue and concluding that Burrage was a new rule of statutory law). Salas fails to satisfy the requirements of § 2255(h). IT IS ORDERED that Salas’s motion for authorization to file a successive § 2255 motion is DENIED. 2

Primary Holding

Fifth Circuit declines to authorize a second or successive 28 U.S.C. 2255 motion by a prisoner citing the Supreme Court's "Burrage" holding that, to apply the mandatory sentence under 21 U.S.C. 841(b)(1)(C) for a death resulting from the defendant’s drug trafficking, it is necessary to establish beyond a reasonable doubt that the death would not have occurred “but for” the defendant’s conduct.

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