Submitted: October 19, 2018
Appeal
from United States District Court for the District of
Minnesota - Minneapolis
Before
SHEPHERD, KELLY, and STRAS, Circuit Judges.
PER
CURIAM.
In
2000, Jose Alberto Mora-Higuera pleaded guilty to four counts
related to methamphetamine and cocaine distribution and one
count of unlawful reentry after removal. The district court
classified Mora-Higuera as a career offender under United
States Sentencing Guidelines § 4B1.1 and sentenced him
to 292 months' imprisonment. As relevant here, the
district court determined that one of Mora-Higuera's
convictions-California second-degree robbery-qualified as a
predicate "crime of violence" under § 4B1.2 of
the Guidelines. We affirmed Mora-Higuera's sentence on
appeal. See United States v. Mora-Higuera, 269 F.3d
905, 912-13 (8th Cir. 2001).[1] In June 2016, he moved to correct
his sentence under 28 U.S.C. § 2255 based on Johnson
v. United States, 135 S.Ct. 2551 (2015), but the
district court[2] denied his motion as untimely.
We
review de novo the district court's dismissal of a §
2255 motion based on the statute of limitations. E.J.R.E.
v. United States, 453 F.3d 1094, 1097 (8th Cir. 2006).
Motions under § 2255 are subject to a one-year
limitations period. See 28 U.S.C. § 2255(f). In
practice, this usually means that a prisoner must file a
motion within one year of "the date on which the
judgment of conviction becomes final." §
2255(f)(1). "He may file at a later date, however, if
the motion comes within one year of 'the date on which
the right asserted was initially recognized by the Supreme
Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on
collateral review.'" Russo v. United
States, 902 F.3d 880, 882 (8th Cir. 2018) (quoting 28
U.S.C. § 2255(f)(3)).
Mora-Higuera
argues that his motion is timely under § 2255(f)(3)
because he filed it within one year of the Supreme
Court's decision in Johnson, which invalidated
the residual clause of the Armed Career Criminal Act.
Mora-Higuera argues that Johnson also effectively
invalidated the residual clause of § 4B1.2(a)(2) of the
mandatory Guidelines that were in effect at the time of his
original sentencing.
Mora-Higuera's
arguments are foreclosed by Russo. In that case, we
held that the right Mora-Higuera asserts here-"a right
under the Due Process Clause to be sentenced without
reference to the residual clause of § 4B1.2(a)(2) under
the mandatory guidelines"-was "not dictated by
Johnson." 902 F.3d at 882-83. To the contrary,
we reasoned, "[i]t is reasonably debatable whether
Johnson's holding regarding the ACCA extends to
the former mandatory guidelines," and, accordingly, the
petitioner in that case could not benefit from a renewed
limitations period under § 2255(f)(3). Id. at
883. So too here.
The
judgment of the district court is affirmed.
---------
Notes:
[1]The district court subsequently reduced
Mora-Higuera's sentence to 262 months' imprisonment
based on Amendment 782 to the Guidelines. See 18
U.S.C. § 3582(c)(2). Mora-Higuera qualified for a
reduction because the drug quantity table of § 2D1.1,
rather than his career-offender status, set his original
total offense level. See United States v. Small, 599
F.3d 814, 815 (8th Cir. 2010) ("The career-offender
provision requires that the total offense level be the
greater of the offense level in § 4B1.1(b), or the
offense level otherwise applicable under Chapters Two and
Three of the guidelines based on the underlying
conduct."); see also United States v. Thomas,
775 F.3d 982, 982-83 (8th Cir. 2014) (per curiam) (explaining
that Amendment 782 is applicable if the offense level is
calculated under § 2D1.1, but inapplicable if it is
based on career-offender status). After Amendment 782,
however, both Mora-Higuera's total offense level and his
criminal history category were driven by his career-offender
status.
[2]The Honorable Donovan W. Frank, United
States District Judge for the District of ...