United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
D. BATES, UNITED STATES DISTRICT JUDGE
Heiner Julian Arboleda Satizabal pleaded guilty on December
8, 2011 to one count of conspiracy to distribute five
kilograms or more of cocaine in violation of 21 U.S.C.
§§ 959, 960, and 963. The terms of his plea
agreement under Fed. R. Crim. P. 11(c)(1)(c) placed his
recommended sentencing range at 135-168 months, Plea
Agreement [ECF No. 118] ¶¶ 8-9, and ultimately the
Court sentenced him to 108 months on November 27, 2012.
Satizabal did not appeal his sentence, having waived his
direct appeal as part of the plea agreement. Id.
¶ 23. On February 17, 2016, however, he filed a pro se
motion to correct his sentence under 28 U.S.C. § 2255.
Def.’s Mot. [ECF No. 402] at 1. Relying on United
States v. Smith, 27 F.3d 649 (D.C. Cir. 1994),
Satizabal’s motion asks the Court to reduce his
sentence by six months to account for the fact that his
status as a deportable alien will lead to harsher conditions
of confinement than those a U.S. citizen would face. The
Court will deny the motion as untimely.
under § 2255 must generally be filed no later than one
year after a judgment of conviction becomes final, subject to
certain enumerated exceptions. See 28 U.S.C. §
2255(f). Satizabal’s motion appears untimely on its
face, as it was filed 39 months after his judgment of
conviction became final. Satizabal briefly mentions §
2255(f)(4) to justify his filing long after one year had
passed, but he does not explain how his case fits into this
exception. Section 2255(f)(4) delays the start of the
one-year period until "the date on which the facts
supporting the claim or claims presented could have been
discovered through the exercise of due diligence."
Satizabal identifies no facts that were not known to him at
the time of sentencing. His primary argument is that his
status as a deportable alien should have yielded a lower
sentence. As his plea agreement makes clear, however,
Satizabal was aware at the time of sentencing that his status
as a deportable alien could affect his sentence-indeed, his
plea agreement expressly waived the opportunity to ask the
Court for a reduction on that ground. Plea Agreement ¶
9. Section 2255(f)(4) must be triggered by newly discovered
facts, not new legal theories arising out of known facts.
United States v. Pollard, 416 F.3d 48, 54-55 (D.C.
Cir. 2005). Satizabal’s claim does not even rise to the
level of a new legal theory. Because § 2255(f)(4) is
inapplicable-as are (f)(2) and (f)(3) as well- his motion is
untimely. See United States v. Matthews, 968
F.Supp.2d 234 (D.D.C. 2013) (denying as time-barred a motion
filed more than four years after judgment that failed to
identify newly discovered facts).
Satizabal’s motion were timely, it would fail on the
merits. A downward sentencing departure under Smith
is not mandatory; the Smith Court itself predicted
these sentencing departures would be rare. See
Smith, 27 F.3d at 655. Moreover, Satizabal explicitly
agreed that he would not seek a Smith reduction as
part of his plea deal: "The parties further agree that
the Defendant shall receive no credit or adjustment of the
sentence recommended by the United States . . . pursuant to
United States v. Smith as a result of the
Defendant’s status as a deportable alien." Plea
Agreement ¶ 9 (citation omitted). Having agreed not to
seek this reduction, Satizabal can hardly now demand it. The
Court was aware of his status as a deportable alien at the
time of sentencing and is confident that his below-Guidelines
sentence was appropriate.
also mentions offhandedly that his "counsel failed to
raise [the Smith] issue with the Court or seek an
appropriate reduction consistent with that which is sought in
this motion." Def.’s Mot. at 5. If construed as an
allegation of ineffective assistance of counsel, this claim
is also time-barred by § 2255(f) and would similarly
fail on the merits. The decision not to raise at sentencing a
reduction argument explicitly foreclosed by the plea
agreement is not objectively unreasonable. See Strickland
v. Washington, 466 U.S. 668, 687-88 (1984) (holding that
a defendant claiming ineffective assistance of counsel
"must show that counsel’s representation fell
below an objective standard of reasonableness").
Satizabal does not argue that the strategic choice to waive
the Smith reduction in the course of plea bargaining
was objectively unreasonable, and the Court cannot see that
it was. Satizabal was sentenced well below the Guidelines
range agreed to in his plea agreement and was not prejudiced
by his attorney’s strategic choices. There is therefore
no valid ineffective assistance of counsel claim.
needed to file his motion under § 2255 no later than a
year after the entry of judgment. Even had he done so,
however, his underlying claims would have been meritless. The
Court will therefore deny the motion. It will also deny a
certificate of appealability. See 28 U.S.C. §
2253; Rules Governing Section 2255 Proceedings for the U.S.
District Courts, Rule 11(a). "When the district court
denies a habeas petition on procedural grounds without
reaching the prisoner’s underlying constitutional
claim, a [certificate of appealability] should issue when the
prisoner shows, at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling." Slack v.
McDaniel, 529 U.S. 473, 484 (2000). In the Court’s
view, jurists of reason would not find debatable either the
Court’s conclusion that Satizabal’s motion was
untimely or its conclusion that the motion fails to state a
valid constitutional claim.
consideration of  defendant’s motion under 28
U.S.C. § 2255,  the government’s memorandum
in opposition, and the entire record herein, and for the
foregoing reasons, it is hereby
that the defendant’s motion is DENIED; and it is
that a certificate of appealability is DENIED.
 The Court has considered the United
States’ memorandum in opposition in addition to the
motion itself. The Court instructed Satizabal that he could
file a reply by no later than May ...