Recio-Hernandez v. United States of America
MEMORANDUM OPINION AND ORDER by District Judge Kenneth J. Gonzales Denying as Moot 5 and Denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255), Certificate of Appealablity is Denied. (jjs)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
No. CR 15-4401 KG
No. CV 16-1138 KG/KRS
JORGE ALBERTO RECIO-HERNANDEZ,
MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Jorge Recio-Hernandez’s Motion to Vacate Under 28
U.S.C. § 2255 (“Motion”), filed October 12, 2016. He argues that Johnson v. United States, 135
S. Ct. 2551 (2015) may impact the length of his sentence. (CR Doc. 39; CV Doc. 1). Having
considered the Motion sua sponte under Habeas Corpus Rule 4(b), the Court denies all requested
Defendant was charged with Reentry of a Removed Alien in violation of 8 U.S.C. §§
1326(a)(1) and (b)(2). (CR Doc. 1). He pled guilty to the charges pursuant to a Fast Track Plea
Agreement. (CR Doc. 21). The United States sought an enhanced sentence under U.S.S.G. §
2L1.2(b)(1)(C)1 based on a prior aggravated felony and subsequent deportation. The Presentence
Investigation Report (PSR) revealed the Superior Court of Arizona previously sentenced
Defendant to five years imprisonment for burglary in the third degree:
[T]he defendant stole a police “bait” car. He crashed into a tree, fled on foot, and
was eventually arrested. Upon a search of the vehicle, officers discovered several
stolen items inside the vehicle. According to the Information filed in this case,
The United States Sentencing Guidelines were amended to exclude subsection (b)(1)(C) after Defendant
the defendant “with intent to commit a theft or felony therein, entered or remained
unlawfully in or on a non-residential structure of Chandler Police Department.”
(PSR, p. 7). The prior conviction resulted in an eight level increase under U.S.S.G. §
2L1.2(b)(1)(C) before other reductions were made. (PSR, p. 4). The Court accepted the plea
agreement, adopted the PSR, and sentenced Defendant to 33 months imprisonment. (CR Doc.
37). Judgment was entered on April 25, 2016. (CR Doc. 38).
Defendant filed the instant Motion on October 12, 2016, contending U.S.S.G. § 2L1.2’s
“aggravated felony” enhancement is unconstitutional under Johnson. He appears to assert the
crime was not an aggravated felony because it involved a car rather than a house.2 Defendant
also argues his counsel took advantage of him in negotiating the plea agreement.3
1. The Johnson Claim
Johnson held that the residual clause of the Armed Career Criminals Act (“ACCA”) is
unconstitutionally vague. 135 S. Ct. at 2557. Sentences imposed pursuant to that clause may
therefore be vacated or reduced. The Tenth Circuit has expanded the Johnson rationale beyond
the ACCA to invalidate other indistinguishable clauses used to define violent felonies. See, e.g.,
Golicov v. Lynch, 2016 WL 4988012 (10th Cir. Sept. 19, 2016). Here, however, Defendant was not
sentenced using any residual, vague, or indistinguishable clause. Defendant’s sentence was
enhanced pursuant to U.S.S.G. § 2L1.2(b)(1)(C). That section incorporates 8 U.S.C. §
1101(43)(G), which defines “aggravated felony” as “a theft offense (including receipt of stolen
property) or burglary offense for which the term of imprisonment [is] at least one year.” The
Defendant: “Now, my question is do I Qualified [sic]for the Johnson law or the Re-entry new laws? Reason I say
this is cuz under the Johnson law a Burglary is not an aggravated felony so theres [sic] no eight point enhancement.”
Defendant: “I feel my lawyer took advantage of my literacy [and] my mental illness for me to take this deal.”
prior Arizona conviction clearly qualifies whether the crime involved a car or a house, and
Johnson is not pertinent. See, e.g., United States v. Hernandez-Rivera, 2016 WL 4528964, *2
(D. Nev. Aug. 30, 2016) (“Johnson is not relevant to whether either of the defendant’s
convictions qualify as aggravated felonies” under § 1101(43)(G)).
Further, while U.S.S.G. § 2L1.2(b)(1)(C) borrows its definition of “aggravated felony
from” from 8 U.S.C. § 1101(43), the enhancement occurred pursuant to the advisory United
States Sentencing Guidelines. In Beckles v. United States, 137 S. Ct. 886, 892 (2017), the
Supreme Court held that inmates sentenced under the guidelines are not eligible for relief under
Johnson. Therefore, Defendant’s Johnson claim will be dismissed.
2. Ineffective Assistance of Counsel
It is not entirely clear whether Defendant intends to raise an ineffective assistance of
counsel claim. He complains about his attorney, but appears to clarify he is only seeking relief
I feel my lawyer took advantage of my literacy and my mental illness for me to
take this deal. My felony is more than 15 years old. I’m not trying to open my
case, I just want to know if I can appeal under the Johnson law.
In any event, the claim would not survive screening. A defendant cannot demonstrate ineffective
assistance of counsel where, as here, the plea colloquy belies the argument that he was not
adequately informed of the terms of the plea agreement. See Holt v. Brace, 418 Fed. App’x 697,
701 (10th Cir. 2011) (“Numerous courts have denied relief under … § 2255 to petitioners
alleging that their guilty pleas were the product of ineffective assistance when their plea
colloquies demonstrated otherwise”).
The plea agreement, which was explained in Spanish at the plea hearing, states:
The defendant agrees and represents that this plea of guilty is freely and
voluntarily made and not the result of force or threats or of promises apart from
those set forth in this plea agreement. There have been no representations or
promises from anyone as to what sentence the Court will impose. The defendant
also represents … [he] is pleading guilty because the defendant is in fact guilty.
(CR Doc. 21, ¶ 10). During the plea colloquy, Defendant represented he fully understood his
plea, its consequences, and the possible penalties, and that he consulted with his attorney and was
satisfied with his representation. (CR. Doc. 22). The Court also inquired into Defendant’s
mental condition and found the plea was freely, voluntarily, and intelligently made. Id.
Defendant has not demonstrated his counsel was ineffective, and the Motion will therefore be
Further, under Habeas Corpus Rule 11(a), the Court determines sua sponte that Defendant
has failed to make a substantial showing that he has been denied a constitutional right. The Court
will therefore deny a certificate of appealability.
IT IS ORDERED that Defendant’s Motion to Vacate Under 28 U.S.C. § 2255 (CR Doc.
39; CV Doc. 1) is DISMISSED with prejudice; a certificate of appealability is DENIED; and
judgment will be entered.
IT IS FURTHER ORDERED that Defendant’s Motion to Appoint Counsel (CR Doc. 41)
is DENIED as moot.
UNITED STATES DISTRICT JUDGE
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