United States District Court, S.D. West Virginia, Charleston Division
ARNOLDO A. GAMBOA, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
R. GOODWIN /UNITED STATES DISTRICT JUDGE
is Movant Arnoldo A. Gamboa's petition for relief
pursuant to Federal Rule of Civil Procedure
60(b)(6). For the reasons set forth below, the Court
DENIES the motion.
December 9, 2008, the United States filed a superseding
indictment charging the Movant with (1) conspiracy to
distribute 5 kilograms or more of cocaine, in violation of 21
U.S.C. § 846, and (2) conspiracy to launder monetary
instruments, in violation of 18 U.S.C. § 1956(h). On
June 3, 2009, Movant was convicted on both charges following
a jury trial. On October 15, 2009, the Judgment was entered
sentencing movant to life imprisonment. On March 8, 2011, our
Court of Appeals affirmed.
April 16, 2012, Movant petitioned pursuant to 28 U.S.C.
§ 2255 to vacate, set aside or correct his criminal
sentence. The action was referred to the Honorable Mary E.
Stanley, a former United States Magistrate Judge, for
submission of her Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28
U.S.C. § 636. On January 4, 2013, the Magistrate Judge
filed her PF&R recommending that the Court deny the
section 2255 motion. On July 18, 2013, the Court received
Movant's objections. On April 8, 2013, the Court adopted
the PF&R. On April 22, 2013, the Movant noticed his
appeal of the Judgment. On July 23, 2013, the Court of
Appeals denied a certificate of appealability. On October 30,
2013, the mandate issued.
November 30, 2017, over four (4) years later, Movant filed
the instant Rule 60(b) motion. While a bit difficult
to apprehend, Movant appears to assert that (1) consistent
with the Sixth Amendment, a jury should have been empaneled
to consider the propriety of the enhancements that resulted
in his sentence of life without parole, or, alternatively,
(2) that the District Court, or perhaps a jury, consistent
with the Eighth Amendment, should have conducted a
proportionality review prior to imposing the aforementioned
inmate may seek relief from a section 2255 Judgment pursuant
to Rule 60(b) under the most narrow of circumstances, namely,
where he “challenges some defect in the integrity of
the federal habeas proceedings . . . .” United
States v. McRae, 793 F.3d 392, 397 (4th Cir. 2015)
(internal quotation marks omitted). Generally, however,
“a district court has no discretion to rule on a Rule
60(b) motion that is functionally equivalent to a
successive” § 2255 motion. United States v.
Winestock, 340 F.3d 200, 206 (4th Cir. 2003). Where, as
here, “a motion directly attack[s] the prisoner's
conviction or sentence [it] will usually amount to a
successive application.” Id. at 207.
“Thus, a brand-new, free-standing allegation of
constitutional error in the underlying criminal judgment will
virtually always implicate the rules governing successive
applications, ” and “new legal arguments or
proffers of additional evidence will usually signify that the
prisoner is not seeking relief available under Rule 60(b) but
is instead continuing his collateral attack on his conviction
or sentence.” Id. The Movant's direct
constitutional attack on his underlying Judgment via Rule
60(b) is a thinly veiled -- and patently impermissible --
attempt to pursue an unauthorized, successive motion pursuant
to 28 U.S.C. § 2255 without the permission of the Court
of Appeals. 28 U.S.C. § 2255(h). The Court thus lacks
jurisdiction to consider the arguments he now offers.
event the Court has misapprehended that obvious procedural
bar, Movant is nevertheless not entitled to relief on the
merits. His arguments reduce to the fact that the Court
should ignore the decision of the Supreme Court in
Almendarez-Torres v. United States, 523 U.S. 224,
238 (1998). The decision in Almendarez-Torres held
that the Constitution permits a judge to find the fact of a
prior conviction by a preponderance of the evidence, even if
the finding enhances the statutory maximum or mandatory
minimum penalty for the offense of conviction. See
Id. at 247. The Movant's invitation to disregard
Supreme Court precedent, however, was dispatched by our Court
of Appeals, in accordance with settled law, several months
In United States v. McDowell, 745 F.3d 115 (4th Cir.
2014), we recognized the application of
Almendarez-Torres to cases in which the defendant
does not concede, or affirmatively disputes, the existence of
the prior conviction. Id. at 123-24. In so doing, we
recognized that more recent Supreme Court authority had
called Almendarez-Torres into question, but we
concluded that we were bound to apply the holding in
Almendarez-Torres, even where the justifications
originally animating that holding did not apply. Id.
Here, Gonzalez argues that Almendarez-Torres was
wrongly decided, noting that concurrences in recent Supreme
Court authority have cast doubt on its continued vitality.
Gonzalez also argues that McDowell represents an
unjustified expansion of the Almendarez-Torres
exception. “Although the Supreme Court has expressed
doubt about the continuing validity of
Almendarez-Torres, ” however, “it
‘remains good law, and we may not disregard it unless
and until the Supreme Court holds to the
contrary.'” United States v. Bullette, 854
F.3d 261, 264 n.2 (4th Cir. 2017) (quoting McDowell,
745 F.3d at 124). Further, “a panel of this court
cannot overrule, explicitly or implicitly, the precedent set
by a prior panel of this court. Only the Supreme Court or
this court sitting en banc can do that.”, 645
F.3d 237, 246 (4th Cir. 2011) (internal quotation marks
United States v. Gonzalez, No. 18-4114, 738
Fed.Appx. 224, 225 (4th Cir. Sept. 20, 2018).
aside from the jurisdictional and procedural bar,
Movant's substantive contentions are meritless.
upon the foregoing discussion, the Court
DENIES the Rule 60(b) motion. It is further