Soto-Robledo v. United States of America

Filing 7

REPORT AND RECOMMENDATIONS by Chief Magistrate Judge Karen B. Molzen. Objections to R&R due by 2/14/2017. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA,
Plaintiff-Respondent,
v.

CIV 16-0452 KG/KBM
CR 14-2443 KG

ALEJANDRO SOTO-ROBLEDO,
Defendant-Movant.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Defendant’s pro se Notice of Timely
Johnson Retroactivity Claim and Preservation of Right (CIV Doc. 1, CR Doc. 63),1 filed
May 16, 2016. On May 19, 2016, the Court entered an order noting that the motion was
docketed as a § 2255 motion and granting leave for Defendant Soto-Robledo (“Soto”) to
either amend or to withdraw his motion within 30 days of the entry of the Order. Doc. 64.
In response to that Order, Soto filed an amended motion pursuant to § 2255 on June
29, 2016 that added two additional claims. Doc. 66. The United States filed a response
to that amended motion on August 22, 2016. Doc. 68. Having reviewed the parties’
submissions and relevant authorities, the Court finds that the issues are clear and that
the § 2255 Motion is not well-taken. The Court will therefore recommend to the
presiding judge that the motion be denied without an evidentiary hearing.

1

For clarity, all future references will be to just the document number in the criminal case, unless
otherwise noted.

I. Factual Background
On August 25, 2014, Soto pled guilty to the § 1326 illegal reentry charge in the
single-count indictment without the benefit of a plea agreement. Doc. 29. The Honorable
Kenneth G. Gonzales sentenced Soto-Robledo to 57 months incarceration on February
3, 2015 after overruling his objections to the Presentence Report (PSR). Doc. 36. On
appeal, the Tenth Circuit affirmed Judge Gonzales’ decision expressly finding that
Judge Gonzales “could reasonably rely on the 16-level enhancement [for a prior drug
trafficking conviction] to arrive at an appropriate sentence.” Doc. 62 at 3.
II. Standard of Review
Under 28 U.S.C. § 2255, a court is permitted to vacate, correct or set aside a
sentence that was “imposed in violation of the constitution or laws of the United States,
or that the Court was without jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is otherwise subject to a collateral
attack.” 28 U.S.C. § 2255. Section 2255 presumes that the movant is entitled to an
evidentiary hearing on his claims unless the record conclusively establishes that the
defendant is not entitled to relief. 28 U.S.C. § 2255(b).
II. Analysis
Looking at both the original and amended motions filed pursuant to § 2255, Soto
raises three claims for relief: (1) retroactive application of Johnson v. United States, 135
S. Ct. 2551 (2015), to his case; (2) lack of jurisdiction for the United States to prosecute
Soto in the United States District Court for the District of New Mexico; and (3) ineffective
assistance of counsel for failure to object to an electronically-filed document in his
appeal with the Tenth Circuit with an allegedly improper signature.

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A. The Johnson Claim
Insofar as Defendant relies on the Johnson decision as a basis for relief, his faith
is misplaced. In Johnson, the United States Supreme Court determined that the Armed
Career Criminal Act (“ACCA”) residual clause for defining a violent felony, 18 U.S.C.
§ 924(e), was unconstitutionally vague. Johnson, 135 S. Ct. at 2557. Thus, an
enhancement of a sentence using that residual clause was found to be invalid.
The Supreme Court subsequently held that Johnson applies retroactively to
cases on collateral review in Welch v. United States, 136 S. Ct. 1257 (2016). Moreover,
the Tenth Circuit has expanded the Johnson rationale to hold unconstitutional
indistinguishable clauses used to define violent felonies, including such clauses found
within the advisory federal sentencing guidelines and other statutory provisions. United
States v. Madrid, 805 F.3d 1204, 1211 (2015) (career offender guideline § 4B1.1);
Golicov v. Lynch, 2016 WL 4988012 (10th Cir. Sept. 19, 2016) (18 U.S.C. §16(b) and, by
extension, 8 U.S.C. § 1101(a)(43)(F)).2
Here, however, Johnson simply is not implicated. No residual clause – ACCA or
otherwise – was used to enhance Defendant Soto’s sentence. Instead, the thenapplicable 16-level enhancement for a prior “aggravated felony” conviction was
predicated on Soto’s prior drug trafficking conviction in violation of C.R.S.A. § 18-18405. Drug trafficking offenses are expressly identified as aggravated felonies under 8
U.S.C. § 1101(43)(C), so there was no need to resort to analysis under the crimes of
violence residual clause under 8 U.S.C. § 1101(43)(F). Similarly, as the United States
points out, a residual clause simply “does not exist under USSG § 2L1.2.” Doc. 68.
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The Tenth Circuit in Golicov held that “18 U.S.C. § 16(b) is not meaningfully distinguishable from the
ACCA's residual clause and that, as a result, § 16(b), and by extension 8 U.S.C. § 1101(a)(43)(F), must
be deemed unconstitutionally vague in light of Johnson.” Id. at *5.

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Insofar as Soto was sentenced as a career offender pursuant to USSG § 4B1.1, that
enhancement was also based exclusively on that prior Colorado drug trafficking
conviction. Thus, the Johnson holding and rationale are simply inapplicable, and the
claim lacks merit.
B. Claim of Lack of Jurisdiction to Prosecute
While his amended motion is not a model of clarity, Soto appears to argue that
the United States Attorney for the District of New Mexico lacked jurisdiction to prosecute
him for illegally returning to the United States after his removal.
Section 3231 of Title 18 of the United States Code provides that “[t]he district
courts of the United States shall have original jurisdiction, exclusive of the courts of the
States, of all offenses against the laws of the United States.” Defendant was charged
with illegal reentry – a violation of 18 U.S.C. § 1326.
The plain language of § 1326(a) establishes that a previously deported
alien who illegally enters and remains in the United States can violate
the statute at three different points in time, namely, when the alien
(1) “enters,” (2) “attempts to enter,” or (3) is at any time “found in” the
United States. We have held that the “found in” language of § 1326(a)
is synonymous with “discovered in.”
United States v. Rosales-Garay, 283 F.3d 1200, 1202 (10th Cir. 2002). Thus, illegal
reentry constitutes a continuing offense until the alien who reentered without permission
is “found” within the United States. United States v. Morgan, 380 F.3d 698, 703 (2d Cir.
2004). A proper venue for prosecution of this offense therefore lies in the district in
which the alien is found. Because Border Patrol agents encountered Soto in Dona Ana
County, New Mexico, this claim fails. Moreover, Soto’s argument that his defense
attorney somehow had a conflict of interest preventing him from raising this meritless
argument also fails.
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C. Ineffective Assistance of Appellate Counsel Claim
The Sixth Amendment provides for the right to effective assistance of counsel in
order to “protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S.
668, 684 (1984). Similarly, an appeal “is not adjudicated in accord with due process of
law if the appellant does not have the effective assistance of an attorney.” Evitts v.
Lucey, 469 U.S. 387, 396 (1985). “To prevail on an ineffective assistance of counsel
claim under Strickland, a petitioner must show: (1) ‘counsel's performance was deficient’
and (2) ‘the deficient performance prejudiced the defense.’” Crawley v. Dinwiddie, 584
F.3d 916, 922 (10th Cir. 2009) (quoting Strickland, 466 U.S. at 687).
The Strickland test demands that the defendant establish that the attorney’s
“representation fell below an objective standard of reasonableness” by showing that
“counsel’s errors were so serious as to deprive the defendant of a fair trial.” Williams v.
Taylor, 529 U.S. 362, 390 (2000) (quoting Strickland, 466 U.S. at 687). The Court must
give “considerable deference to an attorney's strategic decisions” and “‘recognize that
counsel is strongly presumed to have rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.’” Bullock v.
Carver, 297 F.3d 1036, 1044 (10th Cir. 2002) (quoting Strickland, 466 U.S. at 690).
Moreover, if defendant fails to prove actual prejudice, the court need not address
whether counsel's performance was deficient. “Prejudice is shown if defendant
establishes a reasonable probability that the outcome of the trial, sentencing, or appeal
would have been different had counsel raised the omitted claim or argument.” United
States v. Hill, No. CR-05-111-L, 2009 WL 1531533 (W.D. Okla. June 1, 2009) (citing
Neill v. Gibson, 278 F.3d 1044, 1057 (10th Cir. 2001), cert. denied, 537 U.S. 835

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(2002)).
Defendant Soto’s theory is premised upon his appellate attorney’s failure to
object a document which he contends was not lawfully signed pursuant to CM/ECF efiling requirements. Specifically, Soto refers to the Government’s Answer Brief filed July
16, 2015. The Tenth Circuit Court of Appeals CM/ECF User’s Manual requires that the
“name/signature block of the filing user under whose login and password the document
is submitted must be preceded by an ‘/s’ and typed in the space where the signature
would otherwise appear.” CV Doc. 5-1 at 3-4. The Answer Brief in question, Doc.
01019461380 in Docket No. 15-2027 (readily available using the PACER system)
clearly met this requirement as the filer indicated “/s David Williams” where the
handwritten signature would ordinarily appear. Once again, Defendant’s claim
collapses.
Wherefore,
IT IS HEREBY RECOMMENDED that Defendant Soto’s § 2255 Motion as
amended be denied without a hearing.
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a
copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A
party must file any objections with the Clerk of the District Court within the
fourteen-day period if that party wants to have appellate review of the proposed
findings and recommended disposition. If no objections are filed, no appellate
review will be allowed.

________________________________________
UNITED STATES CHIEF MAGISTRATE JUDGE

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