Ponce Garcia v. United States, No. 17-71759 (9th Cir. 2019)
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The Ninth Circuit denied petitioner's application for authorization to file a second or successive 28 U.S.C. 2255 petition collaterally attacking his 2008 sentence for conspiracy to distribute and possess with intent to distribute methamphetamine and possession of a firearm during a drug trafficking offense.
The panel held that the Supreme Court's decision in Dean v. United States, 137 S. Ct. 1170 (2017), did not announce a new rule of constitutional law that the Court has made retroactively applicable to cases on collateral review. Dean held that when a defendant is facing two consecutive sentences—one for a predicate offense, which does not carry a mandatory minimum sentence, and one for an offense committed under 18 U.S.C. 924(c), which does carry a mandatory minimum—the sentencing judge has the discretion to consider the defendant’s mandatory sentence when deciding the proper time to be served for the predicate offense. Therefore, petitioner failed to satisfy the requirements in section 2255(h)(2) because Dean's rule was statutory, not constitutional, and, even if it were constitutional, it was not retroactive to cases on collateral review.
Court Description: 28 U.S.C. § 2255. The panel denied Fernando Ponce Garcia’s application for authorization to file a second or successive 28 U.S.C. § 2255 petition collaterally attacking his 2008 sentence for conspiracy to distribute and possess with intent to distribute methamphetamine (21 U.S.C. §§ 846, 841(1)(a)(1), and 841(b)(1)(A)) and possession of a firearm during a drug trafficking offense (18 U.S.C. § 924(c)(1)(A)). Garcia’s application relied on the rule announced in Dean v. United States, 137 S. Ct. 1170 (2017), which held that when a defendant is facing two consecutive sentences— one for a predicate offense, which does not carry a mandatory minimum sentence, and one for an offense committed under § 924(c), which does carry a mandatory minimum—the sentencing judge has the discretion to consider the defendant’s mandatory sentence when deciding the proper time to be served for the predicate offense. The panel held that Garcia did not satisfy the requirements set forth in 28 U.S.C. § 2255(h)(2) for authorization to file a second or successive § 2255 petition because Dean’s rule was statutory, not constitutional, and even if it were constitutional, the Supreme Court has not made the rule retroactive to cases on collateral review.
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