Argueta-Zaldivar v. United States of America
Filing
11
OPINION AND ORDER dismissing 6 Motion to vacate/set aside/correct sentence (2255) without prejudice as untimely, or in the alternative, denying on the merits. The Clerk shall enter judgment accordingly, place a copy of the judgment in the corresponding criminal case (Case No. 2:11-cr-91-FTM-29MRM), and close the civil file. A certificate of appealability and leave to appeal in forma pauperis are denied. Signed by Judge John E. Steele on 12/18/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
SANTOS DAMIAN ARGUETAZALDIVAR,
Petitioner,
v.
Case No: 2:16-cv-518-FtM-29MRM
Case No. 2:11-CR-91-FTM-29MRM
UNITED STATES OF AMERICA,
Respondent.
OPINION AND ORDER
This matter came before the Court on petitioner’s Emergency
“Mail Box” Filing (Cv. Doc. #1; Cr. Doc. #49) 1 dated June 24, 2016,
and filed on June 27, 2016, seeking to file a motion under 28
U.S.C. § 2255.
The Court deemed the filing to be a motion under
28 U.S.C. § 2255 as of June 24, 2016, and allowed petitioner to
file the motion on the proper form.
(Cv. Doc. #3.)
Petitioner’s
Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct
Sentence by a Person in Federal Custody (Cv. Doc. #6; Cr. Doc.
#50) and Supplemental Memorandum of Law (Cv. Doc. #7; Cr. Doc.
#51) were filed on July 19, 2016.
The government filed a Response
(Cv. Doc. #9) on September 12, 2016.
1The
Court will refer to the docket of the civil habeas case as
“Cv. Doc.”, and will refer to the docket of the underlying criminal
case as “Cr. Doc.”
I.
On September 14, 2011, a federal grand jury in Fort Myers,
Florida returned a one-count Indictment (Cr. Doc. #1) charging
petitioner with illegal reentry into the United States after having
been convicted of an aggravated felony offense in Nevada (the
attempted sale of a controlled substance), and after having been
deported on or about February 12, 2003, in violation of 8 U.S.C.
§ 1326(a) and (b)(2).
to the charge.
On August 1, 2012, petitioner pleaded guilty
(Cr. Docs. #26, 28.)
A Presentence Report (PSR) was prepared, and a sentencing
hearing was held on October 29, 2012.
(Cr. Doc. #33.)
Petitioner
was sentenced under the 2011 United States Sentencing Guidelines
(USSG) (PSR at ¶ 20), so the Court will refer to the Sentencing
Guidelines as they were written at that time.
At the sentencing
hearing there were no objections to the facts set forth in the
PSR, or to the application of the Sentencing Guidelines.
(Cr.
Doc. #40, p. 4.) 1
1 “Facts
contained in a PSI are undisputed and deemed to have been
admitted unless a party objects to them before the sentencing court
with specificity and clarity. [ ] It is the law of this circuit
that a failure to object to allegations of fact in a PSI admits
those facts for sentencing purposes and precludes the argument
that there was error in them. [ ] Indeed, the defendant's failure
to object to conclusory statements in the PSI renders those
statements undisputed and permits the sentencing court to rely
upon them without error even if there is an absence of supporting
evidence.” United States v. Beckles, 565 F.3d 832, 844 (11th Cir.
2009) (internal citations omitted).
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Pursuant to USSG § 2L1.2(a) (2011), petitioner was assigned
a Base Offense Level of 8 for the offense of conviction.
20-21.)
(PSR ¶¶
This Base Offense Level was enhanced by 16 levels pursuant
to § 2L1.2(b)(1)(A)(i) & (ii), which provide:
If the defendant previously was deported, or
unlawfully remained in the United States,
after—
(A)
a conviction for a felony that is (i) a
drug trafficking offense for which the
sentence imposed exceeded 13 months; (ii)
a crime of violence; . . . increase by 16
levels
if
the
conviction
receives
criminal history points under Chapter
Four or by 12 levels if the conviction
does not receive criminal history points;
. . .
USSG § 2L1.2(b)(1)(A) (2011).
The Presentence Report found that
two prior convictions independently supported a 16-level increase:
(1) a drug trafficking offense for which the sentence imposed
exceeded
13
months,
i.e.,
petitioner’s
1998
conviction
for
Attempted Sale of a Controlled Substance in Clark County, Nevada
(PSR ¶ 22); and (2) a 1999 conviction for Assault With a Deadly
Weapon, Great Bodily Injury Likely, in Sacramento, California,
which constituted a crime of violence.
(PSR ¶ 22.)
A second
count of attempted murder was dismissed in the California case and
was not considered.
(Id. at ¶ 36.)
Petitioner received criminal
history points under Chapter 4 of the Guidelines for both of these
prior convictions.
(Id. at ¶ 22.)
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Based upon either of these prior convictions, the resulting
Adjusted Offense Level was 24.
(Id. at ¶ 26).
Three levels were
subtracted based upon petitioner’s acceptance of responsibility
(id. at ¶¶ 27-28), resulting in a Total Offense Level of 21 (id.
at ¶ 29).
With a Total Offense Level of 21, and a criminal history
category of VI 2, the resulting range of imprisonment was 77 to 96
months.
(PSR ¶ 84.)
imprisonment
release.
of
84
The Court sentenced petitioner to a term of
months,
(Cr. Doc. #33.)
followed
by
a
term
of
supervised
Judgment (Cr. Doc. #34) was filed on
October 30, 2012.
Petitioner appealed his sentence, and on June 6, 2013, the
Eleventh Circuit affirmed the sentence.
Zaldivar,
521
F.
App'x
834
(11th
United States v. Argueta-
Cir.
2013);
Cr.
Doc.
#47.
Petitioner did not seek certiorari review.
II.
Petitioner raises only one issue in his § 2255 Motion and
Supplemental Memorandum.
Petitioner asserts that his sentence was
improperly enhanced based upon a prior conviction which can no
longer be considered a crime of violence in light of Johnson v.
United States, 135 S. Ct. 2551 (2015), which was made retroactive
Petitioner had a criminal history score of 11, and two additional
points were added because the offense in this case was committed
while petitioner was under a criminal justice sentence.
This
resulted in a Criminal History Category of VI. (PSR, ¶¶ 35-48.)
2
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to cases on collateral review by Welch v. United States, 136 S.
Ct. 1257 (2016).
(Cv. Doc. #6, p. 4; Doc. #7, pp. 1, 3.)
In
Johnson, the United States Supreme Court held that the Armed Career
Criminal Act’s (ACCA) residual clause is unconstitutionally vague.
Although the ACCA was not involved in Petitioner’s sentencing,
petitioner argues that the use of his 1999 California conviction
for attempted second degree murder was improper because it is not
a crime of violence under 18 U.S.C. § 16, which contains a
definition which is substantially the same as the ACCA residual
clause.
further
(Cv. Doc. #6, p. 4; Cv. Doc. #7, pp. 2-3.)
assert
that
his
motion
is
timely
under
Petitioner
28
U.S.C.
§
2255(f)(3) because it was filed within one year of Johnson (decided
June 26, 2015).
(Cv. Doc. #6, p. 11.)
sentenced without the enhancement.
Petitioner seeks to be re-
(Cv. Doc. #6, p. 12; Doc. #7,
p. 3.)
Even
if
the
petition
was
timely
and
not
procedurally
defaulted, petitioner is not entitled to the relief he seeks for
several reasons.
First, petitioner does not challenge the use of
his prior drug trafficking conviction to enhance the Sentencing
Guidelines calculation (Cv. Doc. #7, p. 2).
supports
the
16-level
enhancement.
This conviction alone
Second,
petitioner
is
factually incorrect as to the crime which was also used to enhance
the
Sentencing
Guidelines
calculation.
The
attempted
murder
charge in California had not resulted in a conviction, and was not
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used to enhance petitioner’s Sentencing Guidelines calculation.
Third,
contrary
to
petitioner’s
belief
(Doc.
#7,
pp.
2-3),
Petitioner was not given two 8 level enhancements, but a single 16
level enhancement which was independently supported by either of
the two prior convictions.
(PSR ¶ 22.)
Fourth, the California
offense upon which the enhancement was based was Assault With a
Deadly Weapon,
Great
Bodily
Injury
Likely.
This
offense
clearly a crime of violence under California precedent. 3
is
United
States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (“cases
holding that a crime is categorically a crime of violence under
the element prongs of the § 2L1.2(b) and § 16(a) definitions are
mutually binding”).
See also United States v. Duran-Garcia, 432
F. App’x 850, 852 (11th Cir. 2011) (finding that because the
California Penal Code requires the use of a firearm, the conviction
3 A
“crime of violence” was defined at the time as:
any of the following offenses under federal,
state, or local law: murder, manslaughter,
kidnapping, aggravated assault, forcible sex
offenses (including where consent to the
conduct is not given or is not legally valid,
such as where consent to the conduct is
involuntary,
incompetent,
or
coerced),
statutory rape, sexual abuse of a minor,
robbery,
arson,
extortion,
extortionate
extension of credit, burglary of a dwelling,
or any other offense under federal, state, or
local law that has as an element the use,
attempted use, or threatened use of physical
force against the person of another.
USSG § 2L1.2 cmt. n.1(B)(iii) (2011).
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qualifies as a crime of violence under USSG § 2L1.2(b)(1)(A)(ii));
United States v. Santos-Santos, 463 F. App’x 728, 732 (11th Cir.
2011) (citing Grajeda); United States v. Flores, 508 F. App’x 864,
866 (11th Cir. 2013) (noting that assault with a deadly weapon in
California
is
a
crime
of
violence).
Fifth,
petitioner
is
incorrect in stating that he had to be sentenced under USSG §
2L1.2(b)(1)(C), and that the definition of “crime of violence”
under 18 U.S.C. § 16, which is a listed “aggravated felony” under
8 U.S.C. § 1101(a)(43)(F), was utilized.
(Cv. Doc. #7, pp. 4-7.)
The “aggravated felony” enhancement under § 2L1.2(b)(1)(C) 4 was
not utilized at all in the calculation of the enhancement to
petitioner’s sentence.
(PSR, ¶¶ 20-30.)
Finally, the enhancement
in this case involved the applicable Sentencing Guidelines, and
the
Sentencing
Guidelines
are
not
constitutional challenge for vagueness.
subject
to
a
Johnson
Beckles v. United States,
137 S. Ct. 886 (2017).
“The § 2255(f) statute of limitations requires a claim-byclaim approach to determine timeliness.”
Beeman v. United States,
871 F.3d 1215, 1219 (11th Cir. 2017) (citations omitted).
Having
considered each claim, the Court finds that petitioner failed to
The constitutionality of this subsection has been called into
question, and is currently before the United States Supreme Court.
Dimaya v. Lynch, 803 F.3d 1110 (9th Cir. 2015), cert. granted, 137
S. Ct. 31 (2016).
4
- 7 -
carry his burden of proving that his sentencing enhancement was
imposed because of the residual clause.
Beeman, 871 F.3d at 1221
(concluding that a Johnson claimant must prove his claim).
As
such, Johnson did not extend petitioner’s statute of limitations,
and the petition in this case is untimely.
Alternatively, the
petition is denied as without merit.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
1.
Petitioner’s Motion Under 28 U.S.C. Section 2255 to
Vacate, Set Aside or Correct Sentence by a Person in Federal
Custody (Cv. Doc. #6; Cr. Doc. #50) is DISMISSED WITHOUT PREJUDICE
as untimely, or in the alternative, is DENIED on the merits.
2.
The Clerk of the Court shall enter judgment accordingly
and close the civil file.
The Clerk is further directed to place
a copy of the civil Judgment in the criminal file.
IT IS FURTHER ORDERED:
A CERTIFICATE OF APPEALABILITY (COA) AND LEAVE TO APPEAL IN
FORMA PAUPERIS ARE DENIED.
A prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district court’s
denial of his petition.
28 U.S.C. § 2253(c)(1); Harbison v. Bell,
556 U.S. 180, 183 (2009).
“A [COA] may issue . . . only if the
applicant has made a substantial showing of the denial of a
constitutional right.”
28 U.S.C. § 2253(c)(B)(2).
To make such
a showing, Petitioner “must demonstrate that reasonable jurists
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would find the district court’s assessment of the constitutional
claims debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282
(2004), or that “the issues presented were adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003)(citations omitted).
Petitioner has not made the
requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate
of appealability, he is not entitled to appeal in forma pauperis.
DONE and ORDERED at Fort Myers, Florida, this
of December, 2017.
Copies:
Petitioner
AUSA
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18th
day
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