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Jimenez-Najera v. United States

United States District Court, N.D. Georgia, Atlanta Division

January 30, 2017

ALBERTO JIMENEZ-NAJERA, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Magistrate Judge John K. Larkins III's Final Report and Recommendation [141] (“R&R”). The R&R recommends the Court deny Movant Alberto Jimenez-Najera's (“Movant”) “application for authorization to file a second or successive motion under 28 U.S.C. § 2255” [135] (“Application”).

         I. BACKGROUND

         A. Facts[1]

         In 2004, a jury in this Court found Movant guilty of: (1) conspiring to possess with intent to distribute at least five kilograms of cocaine; (2) possession with intent to distribute at least five kilograms of cocaine; and (3) carrying a firearm during and in relation to a drug trafficking crime, i.e., during and in relation to the first two crimes. ([18], [80]). In 2005, the Court sentenced Movant to 151 months' imprisonment for the drug crimes and an additional five years' imprisonment, as required by 18 U.S.C. § 924(c), for the firearm crime. ([92]). The court of appeals affirmed the judgment of conviction. ([122]). In 2015, the Court reduced Movant's sentence for the drug crimes from 151 to 121 months' imprisonment, but did not change the consecutive five-year sentence for the firearm crime. ([134]).

         B. Procedural History

         On June 30, 2016, Movant filed his Application in both this Court and the United States Court of Appeals for the Eleventh Circuit, and he listed the Eleventh Circuit in the caption of the Application. Movant states in the Application that he was wrongly sentenced under 18 U.S.C. § 924(c). He claims that he is entitled to relief under Section 2255 pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015).

         Because Movant sought relief under Section 2255, on July 13, 2016, the Magistrate Judge told Movant that the Court intended to recharacterize his Application as a Section 2255 motion. ([139]). The Court warned Movant of the consequences of such recharacterization and gave him an opportunity to withdraw the motion-if he did not want the Court to treat it as a § 2255 motion-or amend it to include other claims. (Id.); see Castro v. United States, 540 U.S. 375, 377 (2003) (requiring courts to warn litigants and provide those options before recharacterizing a filing as a first Section 2255 motion). The Court gave Movant thirty days, until August 12, 2016, to inform the Court if he wanted to withdraw or amend the filing. (Id.). Movant did not file a response to the Court's Order. The deadline for compliance passed, and the Magistrate Judge thus recharacterized Movant's application as a Section 2255 motion and reviewed its merits.

         On August 31, 2016, the Magistrate Judge issued his R&R. The Magistrate Judge found that Movant's sentence was not increased under the ACCA-the sole basis upon which Movant seeks relief-and thus Johnson does not apply, and Movant is not entitled to relief under Section 2255. Movant did not file any objections to the R&R.

         II. DISCUSSION

         A. Legal Standard

         After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1); Williams v. Wainwright, 681 F.2d 732, 732 (11th Cir. 1982) (per curiam). A district judge “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Where, as here, no party has objected to the report and recommendation, the Court conducts only a plain error review of the record. United States v. Slay, 714 F.2d 1093, 1095 (11th Cir. 1983) (per curiam).

         B. Analysis

         In 2015, the Supreme Court decided Johnson, which was a case concerning federal prison sentences enhanced under the Armed Career Criminal Act (the “ACCA”). Johnson, 135 S.Ct. at 2555. The ACCA applies only to persons convicted in federal court of possessing a firearm after having been convicted of a felony. 18 U.S.C. § 924(e). Those convicted of that crime and who have three prior convictions for either serious drug offenses or violent felonies face an increased sentence under the ACCA. Id. The Supreme Court held that the residual clause of the ACCA's definition of ‚Äúviolent ...


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