United States District Court, D. Colorado
T. BABCOCK, JUDGE
case is before me on Defendant/Petitioner Jose Ramirez's
motion for post-conviction relief under 28 U.S.C. §
2255. (ECF No. 54.) Mr. Ramirez contends that his conviction
and sentence for unlawful possession of a firearm in
violation of 18 U.S.C. § 922(g) was predicated on
constructive possession. According to Mr. Ramirez, the Tenth
Circuit's decision United States v. Little, 829
F.3d 1177 (10th Cir. 2016), which narrowed the definition of
constructive possession by requiring the “power and
intent to exercise control over the object, ” should
apply retroactively to his case. Under the new definition,
Mr. Ramirez argues he is not guilty of constructive
possession of a firearm.
conclude that Mr. Ramirez's claim for relief is within
the scope of the appellate waiver he knowingly and
voluntarily agreed to when he pleaded guilty. I further
conclude that enforcing the waiver would not result in a
miscarriage of justice. I accordingly DENY the petition. (ECF
2007, Mr. Ramirez sold an undercover officer about two ounces
of methamphetamine for $3, 000 cash. (ECF No. 8 at 35.)
Agents searched Mr. Ramirez's house and found one
kilogram of cocaine, eleven ounces of methamphetamine, and
two handguns. (Id.) At the time of the search, Mr.
Ramirez was a convicted felon.
Ramirez was charged with six felony counts, and as part of a
plea agreement, he pleaded guilty to two of them: count
three, distribution and possession with intent to distribute
more than 50 grams of a methamphetamine mixture in violation
of 21 U.S.C. § 841(a)(1) and (b)(1)(B), and count five,
possession of a firearm by a prohibited person in violation
of 18 U.S.C. §§ 922(g). (ECF No. 35 ¶ 1.) Mr.
Ramirez also waived his rights to directly appeal his
sentence or attack it collaterally, with some narrow
exceptions. (Id. ¶¶ 8-9.) In exchange for
the plea and waiver, the government dismissed the remaining
counts. (Id. ¶ 3.)
sentenced Mr. Ramirez to 135 months on count three and 120
months on count five, to be served concurrently, followed by
48 months of supervised release. (ECF No. 48.) Mr. Ramirez
did not file a direct appeal.
brings a motion for post-conviction relief under 28 U.S.C.
§ 2255 based on the Tenth Circuit's decision in
United States v. Little, 829 F.3d 1177 (10th Cir.
2016). In Little, the court considered the evidence
required for a conviction for possession of a firearm under
18 U.S.C. § 922 in light of the Supreme Court's
decision in Henderson v. United States, 135 S.Ct.
1780 (2015). First, the court explained that a conviction for
possession of a firearm under 18 U.S.C. § 922 can be
premised on actual or constructive possession.
Little, 829 F.3d at 1181. Next, the court recognized
that its prior case law did not require evidence “that
the defendant intended to exercise . . . dominion or
control” over a gun to prove constructive possession.
Id. Finally, the court recognized that this
interpretation was inconsistent with the Supreme Court's
decision in Henderson, where the Court held that
“[c]onstructive possession is established when a
person, though lacking physical custody, still has the power
and intent to exercise control over the object.”
Id. at 1182 (quoting Henderson, 135 S.Ct.
at 1784). In light of Henderson, the Tenth Circuit
held that “constructive possession exists when a person
not in actual possession knowingly has the power and intent
at a given time to exercise dominion or control over an
object” and overruled its prior precedent to the
Ramirez argues that under Little and
Henderson, the government cannot prove constructive
possession. When agents executed the search warrant at his
home, he had fled the country. According to Mr. Ramirez, he
thus did not have the “power and intent” to
exercise dominion and control of the gun at the relevant
time. He therefore asks this Court to grant him relief under
conclude that Mr. Ramirez knowingly and voluntarily waived
his right to raise the claim he brings now, and enforcing the
waiver would not result in a miscarriage of justice. In light
of this determination, I do not reach the merits of his
argument regarding the retroactive application of
Little or the Government's alternative arguments
in support of dismissing the petition.
defendant waives his right to bring a post-conviction
collateral attack in his plea agreement and later brings a
§ 2255 petition, the court must determine “(1)
whether the disputed claim falls within the scope of the
waiver of appellate rights; (2) whether the defendant
knowingly and voluntarily waived his appellate rights; and
(3) whether enforcing the waiver would result in a
miscarriage of justice.” United States v.
Viera, 674 F.3d 1214, 1217 (10th Cir. 2012) (quoting
United States v. Hahn, 359 F.3d 1315, 1325 (10th
Cir. 2004)) (alterations omitted).