United States v. Jose Valenzuela

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 24, 2022
• Docket: 20-50356
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 24 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50356

Plaintiff-Appellee, D.C. Nos. 2:77-cr-01047-CJC-1 2:77-cr-01047-CJC v.

JOSE GUADALUPE VALENZUELA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted December 10, 2021** Pasadena, California

Before: W. FLETCHER, RAWLINSON, and OWENS, Circuit Judges.

Federal prisoner Jose Guadalupe Valenzuela appeals from the district court’s

denial of his motion for resentencing. We lack jurisdiction and dismiss the appeal.

Valenzuela was originally sentenced in 1978 for conspiracy to possess

heroin with intent to distribute, possession of heroin with intent to distribute,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). aiding and abetting, and operating a continuing criminal enterprise (“CCE”).

Valenzuela received a life sentence for the CCE conviction and lesser concurrent

sentences for his other convictions. We affirmed and noted that there was “no

need to inquire into the propriety of other lesser or equal concurrent sentences

since [Valenzuela’s] prison term [for the CCE count] will remain the same

whatever the resolution of the other sentences might be.” United States v.

Valenzuela, 596 F.2d 1361, 1365 (9th Cir. 1979).

In 1998, the district court partially granted Valenzuela’s 28 U.S.C. § 2255

motion and vacated his conspiracy conviction based on new Supreme Court

authority. The CCE conviction and the attendant life sentence remained

undisturbed. Valenzuela appealed, and we affirmed, concluding that the district

court properly decided not to vacate Valenzuela’s CCE conviction. United States

v. Valenzuela, 225 F.3d 665, No. 99-55413, 2000 WL 733603, at *1-2 (9th Cir.

June 7, 2000).

Two decades later, in 2020, Valenzuela filed the instant motion for

resentencing. Valenzuela argued that he should receive a full resentencing,

including exercising his right of allocution to address the court, because back in

1998, he was never resentenced following the partial grant of his § 2255 motion

and vacatur of his conspiracy conviction, which “unbundled” his sentencing

package. The district court denied the motion for resentencing. Relying on

2 Troiano v. United States, 918 F.3d 1082, 1087-88 (9th Cir. 2019), the district court

reasoned that a full resentencing was not required because the vacatur of

Valenzuela’s conspiracy conviction had no impact on his overall sentence.

As a preliminary matter, the Government argues that the district court lacked

jurisdiction to consider Valenzuela’s motion for resentencing and that we lack

jurisdiction to entertain this appeal. Although the Government did not contest

jurisdiction in the district court, “lack of jurisdiction is a matter which can be

raised at any time . . . and must be addressed before any consideration of the

merits.” United States v. Reves, 774 F.3d 562, 564 (9th Cir. 2014).

“[A] district court does not have inherent power to resentence defendants at

any time.” United States v. Handa, 122 F.3d 690, 691 (9th Cir. 1997) (citation

omitted). Valenzuela argues that the district court in 2020 had the authority to

resentence him under 28 U.S.C. § 2255 because his original § 2255 motion was

partially granted in 1998. However, Valenzuela’s original § 2255 proceeding was

final long before Valenzuela filed the instant motion for resentencing. While it

appears that the district court did not enter an amended judgment following his

partially-successful § 2255 motion, Valenzuela already appealed the district court’s

decision regarding his original § 2255 motion. Valenzuela’s reliance our

unpublished decision in United States v. Whitmore, 682 F. App’x 626 (9th Cir.

2017), is misplaced.

3 Rather, Valenzuela’s motion for resentencing is properly characterized as an

unauthorized second or successive § 2255 motion. See Balbuena v. Sullivan, 980

F.3d 619, 634-35 (9th Cir. 2020). Therefore, the district court lacked jurisdiction

to consider Valenzuela’s motion for resentencing. See United States v.

Washington, 653 F.3d 1057, 1065 (9th Cir. 2011).

Moreover, since Valenzuela’s motion for resentencing is properly

characterized as a § 2255 motion, it requires a certificate of appealability (“COA”).

See 28 U.S.C. § 2253(c)(1)(B). Valenzuela should have obtained a COA, but did

not and cannot because it is not debatable that the motion was a second or

successive § 2255 motion and Valenzuela did not obtain this court’s authorization

before filing it. See United States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001).

DISMISSED.