Ponce Garcia v. United States, No. 17-71759 (9th Cir. 2019)Annotate this Case
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.