United States v. Carrillo-Perez
670 F. App'x 658
| 10th Cir. | 2016Background
- Eduardo Carrillo-Perez pled guilty to conspiracy to possess with intent to distribute >500 grams methamphetamine and was sentenced in 2012 to the 120‑month statutory mandatory minimum under 21 U.S.C. § 841(b)(1)(A).
- He did not file a direct appeal from his 2012 judgment.
- After the Sentencing Commission issued Amendment 782 lowering certain drug offense base offense levels, Carrillo‑Perez filed a pro se motion under 18 U.S.C. § 3582(c)(2) seeking a sentence reduction.
- The district court dismissed the § 3582(c)(2) motion for lack of jurisdiction because Carrillo‑Perez’s sentence was the statutory minimum and thus unaffected by Amendment 782.
- On appeal Carrillo‑Perez raised arguments attacking his original conviction and counsel effectiveness, and the court treated his filing as an untimely attempt to appeal the original judgment.
- The Tenth Circuit dismissed the appeal sua sponte as inordinately late and held that § 3582(c)(2) is not a vehicle to collaterally attack the original sentence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Carrillo‑Perez is eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2) after Amendment 782 | Amendment 782 lowered his guideline range so he should get a reduction | He was sentenced to the statutory mandatory minimum, unaffected by Amendment 782; § 3582(c)(2) therefore inapplicable | Court held he is ineligible because the sentence was the statutory minimum and not based on a subsequently lowered guideline range |
| Whether a § 3582(c)(2) motion can be used to attack the validity of the original plea or counsel effectiveness | Carrillo‑Perez argued ineffective assistance and plea invalidity | Government argued § 3582(c)(2) does not permit collateral attacks on the original judgment | Court held § 3582(c)(2) cannot be used to challenge original conviction or counsel conduct; such claims are not reviewable in this proceeding |
| Whether the appellate filing constituted a timely appeal of the original judgment | Carrillo‑Perez’s brief raised original‑sentence issues (implying appeal) | Government noted no timely notice of appeal was filed within Rule 4’s period | Court held any appeal of the original judgment was untimely and dismissal sua sponte was appropriate because the delay (four years) was inordinate |
| Whether appellate arguments not raised in the opening brief are waived | Carrillo‑Perez raised multiple issues but not the district court’s dismissal of his § 3582(c)(2) motion in his brief | Government relied on waiver doctrine | Court held issues not clearly presented in the opening brief are waived, including the identified basis of appeal |
Key Cases Cited
- Toevs v. Reid, 685 F.3d 903 (10th Cir. 2012) (arguments not clearly made in opening brief are deemed waived)
- United States v. Smartt, 129 F.3d 539 (10th Cir. 1997) (§ 3582(c) cannot be used to review ineffective-assistance claims about the original sentence)
- Smith v. Barry, 502 U.S. 244 (1992) (opening brief can serve as notice of appeal if timely and compliant with Rule 3(c))
- United States v. Garduño, 506 F.3d 1287 (10th Cir. 2007) (Fed. R. App. P. 4(b)(1)(A) is a forfeitable claim-processing rule)
- United States v. Mitchell, 518 F.3d 740 (10th Cir. 2008) (appellate courts may raise Rule 4(b) time bars sua sponte in appropriate cases)