Rodriguez-Arroyo v. United States of America

Filing 4

ORDER; Before the Court is Petitioners Motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The Court DENIES Defendants motion, as more fully set out. Signed by Honorable David L. Russell on 12/19/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
LUIS ENRIQUE RODRIGUEZARROYO,
Defendant.

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Case No. CR-15-78-R

ORDER
Before the Court is Petitioner’s Motion to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. (Doc. No. 28). The Government has responded (Doc. No. 41) and
Defendant, through counsel, filed a reply in support of his position (Doc. No. 50). For the
reasons that follow, the Court DENIES Defendant’s motion.
A grand jury indicted Defendant on April 21, 2015, charging him with violation of
8 U.S.C. § 1326(a), because he was found in the United States, have previously been
removed on May 7, 2013. On June 8, 2015, Defendant entered a plea of guilty to the charge.
On November 25, 2015, the Court sentenced Defendant to sixty-months imprisonment.
Defendant did not seek a direct appeal, but rather filed the instant motion, which the Court
earlier concluded should be considered timely filed. (Doc. No. 40). The § 2255 motion
originally asserted three claims, each tied to counsel’s alleged ineffectiveness. He argued
that: (1) he requested his attorney to challenge the base level offense attributed to him by
the probation officer but that she failed to do so, specifically as it related to his prior felony
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convictions; (2) she failed to perfect an appeal of his sentence, despite his request that she
do so; and (3) counsel assured Defendant he would receive the lowest possible sentence
under the law, otherwise he would not have pled guilty. The Court ordered the United
States to respond to the motion and upon receipt of its response, appointed Defendant
counsel and set a date for an evidentiary hearing in light of Defendant’s allegation that
counsel ignored his request to file an appeal. (Doc. No. 42). Prior to the hearing date,
through appointed counsel, Defendant filed a Motion to Strike Evidentiary Hearing. (Doc.
No. 46). The Motion indicated that Defendant wished to withdraw his claim that trial
counsel was constitutionally ineffective for failing to initiate an appeal and that he no
longer wished to pursue his contention that trial counsel was constitutionally ineffective
for falsely assuring him he would receive the least possible punishment if he entered a plea
of guilty, because he would have accepted a plea regardless. As a result of Defendant’s
motion, the Court struck the evidentiary hearing and what remains is a single issue,
whether Defendant received constitutionally ineffective assistance from counsel because
she failed to object to the sixteen (16) level enhancement he received because certain of
his prior convictions were considered crimes of violence under Section 2L1.2(b)(A)(ii) of
the United States Sentencing Guidelines (U.S.S.G.).
The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const.
amend. VI. Any successful claim of ineffective assistance of counsel must satisfy the
familiar two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 697 (1984).
That is, Defendant must establish (1) that his lawyer's performance was deficient, i.e., it
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fell below the level expected from a reasonably competent attorney in criminal cases, and
(2) that he suffered prejudice, i.e., there is a reasonable probability that the result would
have been different but for his lawyer's unprofessional errors. United States v. Cruz, 774
F.3d 1278, 1284-85 (10th Cir. 2014) (citing Strickland v. Washington, 466 U.S. 668, 687,
696 (1984)). “[T]here is no reason for a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even to address both components of the inquiry
if the defendant makes an insufficient showing on one. In particular, a court need not
determine whether counsel's performance was deficient before examining the prejudice
suffered by the defendant as a result of the alleged deficiencies.” Strickland, 466 U.S. at
697.
The presentence investigation report indicates a base level offense of 8; however,
pursuant to U.S.S.G. § 2L1.2(b)(A)(ii), a sixteen point adjustment is appropriate if, “the
defendant previously was deported, or unlawfully remained in the United States, after—. .
. (ii) a crime of violence.” The Commentary to Section 2L1.2 defined “crime of violence”
as:
any of the following offenses under federal, state, or local law: . . . 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.
Defendant’s attorney did not object to the presentence report’s determination that two of
Defendant’s prior convictions for burglary were properly considered crimes of violence
under this section. Defendant contends this was error and that the error prejudiced him by
substantially increasing the guideline range for his sentence. The Government contends
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that it was not unreasonable for counsel to concede the issue given the state of the law in
November 2015 when the Court imposed Defendant’s sentence.
Relying in part on Mathis v. United States, 136 S.Ct. 2243 (2016), Defendant
contends his burglary convictions would not be considered crimes of violence. In Mathis,
the Supreme Court concluded that a conviction under Iowa’s burglary statute did not
support enhancement under the Armed Career Criminal Act’s enumerated clause, because
the statute encompassed more than generic burglary and the ACCA’s enumerated offenses
are assessed in reference to generic versions of the listed offense, not to the potential
variations of the crime that may be committed under a particular state’s legal scheme. Id.
at 2248. In order for a prior conviction to qualify as a predicate offense under the ACCA,
its elements must be the same as or more narrow than those of the generic offense. Id. The
Government acknowledges the authority that Oklahoma’s burglary statute is not as or more
narrow than the generic offense of burglary. See United States v. Taylor, 672 Fed.Appx.
860, 863 (10th Cir. 2016) (unpublished)(it would be reversible error to apply the modified
categorical approach to a conviction under the Oklahoma second degree burglary statute).
The government contends, however, that because Mathis post-dates Defendant’s
sentencing, that counsel was not ineffective for failing to predict the outcome and to raise
the issue. See Bullock v. Carver, 297 F.3d 1036, 1052 (10th Cir. 2002) (“[W]e have rejected
ineffective assistance claims where a defendant faults his former counsel not for failing to
find existing law, but for failing to predict future law and have warned that clairvoyance is
not a required attribute of effective representation”) (internal quotation and citation
omitted).
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Defendant replies by correctly noting that Mathis did not announce a new rule of
law, but rather was premised on prior Supreme Court precedent. See Mathis, 136 S.Ct. at
2251. Accordingly, Defendant contends that counsel was not required to predict a change
in the law, but rather to argue the existing Supreme Court precedent that fell in his favor.
The Court disagrees with Defendant, given the actual state of the law in the Tenth Circuit
despite this Supreme Court precedent cited in Mathis. The Northern District of Oklahoma
recently explained:
[A]lthough the Supreme Court indicated in Mathis that its holding in that
case was based on 25 years of clear precedent, it did resolve a split between
the Circuits, on an issue as to which the Tenth Circuit has previously sided
with the Eighth Circuit position that was expressly rejected in Mathis. Prior
to Mathis, the Tenth Circuit had affirmed sentencing courts’ use of the
modified categorical approach to determine whether convictions under
Oklahoma’s second degree burglary statute would qualify for ACCA
enhancement purposes. For example, in United States v. Green, 55 F.3d 1513
(10th Cir 2005), the Tenth Circuit determined that the Oklahoma second
degree burglary statute “defined burglary in terms broader” than the generic
definition, such that a conviction under that statute cannot as a categorical
matter provide a basis for enhancement under the ACCA.” Id. at 1516. Yet
the Circuit noted that it authorized use of the conviction for second degree
burglary “for enhancement purposes’ if the charging document coupled with
another document sufficiently enables the sentencing court to determine
whether the defendant’s prior conviction constitutes a violent felony.’” Id. at
1516 (quoting United States v. Hill, 53 F.3d 1151, 1153 (10th Cir. 1995)(en
banc). And, as the Supreme Court noted, the Tenth Circuit had previously
disregarded the means versus elements distinction in approving of the
modified categorical approach. Mathis, 136 S.Ct. at 2251, fn. 1.
United States v. Bias, 2017 WL 3326457, *6 (N.D.Okla. Aug. 3, 2017). The Bias court
further noted that in Mr. Bias’s case, the Tenth Circuit had permitted appellate counsel to
withdraw after filing a brief pursuant to Anders v. California, 386 U.S. 738, 744 (1967),
stating “[w]ith respect to the Act’s enhancement, [counsel] points out Mr. Bias admitted
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being convicted of the three prior burglaries and they qualify as “violent crimes,” either as
charged, and/or from the underlying documentation, pursuant to the district court’s
application of the categorical, or modified categorical approach. . . . “ Id. at *7 (quoting
United States v. Bias, 2014 WL 2922671, at *2–3 (10th Cir. June 30, 2014)); see also
United States v. Hamilton, 235 F.Supp.3d 1229, 1239 (N.D.Okla. 2017)(“Prior to Mathis,
however, the Tenth Circuit routinely applied the modified categorical approach to
[Oklahoma’s second degree burglary] statute and permitted ACCA enhancement where the
underlying charging documents demonstrated the conviction satisfied the generic
definition.”). As such, the Court finds that Defendant’s contention that counsel’s
performance fell below the standard of reasonableness without merit under Strickland.
Counsel cannot be considered constitutionally ineffective for failing to anticipate Mathis,
which despite not adopting a new rule of law, fundamentally altered how courts in the
Tenth Circuit assess prior convictions for purposes of enhancing sentences. Because Tenth
Circuit precedent at the time of Defendant’s sentencing provided that Oklahoma’s seconddegree burglary qualified as a crime of violence under the modified categorical approach,
where, as here, the supporting documentation indicated burglary of a dwelling, counsel for
Defendant did not perform below the reasonable standard for defense attorneys by failing
to make an objection that could reasonably have been thought precluded by circuit
precedent, particularly given the deferential standard for judging counsel's performance.
Harrington v. Richter, 562 U.S. 86, 105 (2011). Counsel cannot be considered
constitutionally ineffective for failing to make what would have at the time amounted to a

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meritless objection, and accordingly, Defendant’s ineffective assistance of counsel claim
fails as a matter of law.1
For the reasons set forth herein, Defendant’s Motion to Vacate or Correct is
DENIED. Further, the Court hereby denies Defendant a Certificate of Appealability (COA)
under Rule 11(a) of the Rules Governing Section 2255 Cases in the United States District
Courts. When a court denies a habeas petition on the merits, a petitioner is entitled to a
COA only if he demonstrates “that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues presented
are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S.
322, 327, 123 S.Ct. 1029 (2003). Because Defendant cannot make such a showing, he is
not entitled to a COA.
For the reasons set forth above, the Court hereby DENIES Defendant’s motion
under 28 U.S.C. § 2255.
IT IS SO ORDERED this 19th day of December 2017.

 Defendant asserted in his original motion that counsel erred in failing to inform the Court that his sentences in the
underlying state cases were deferred. Although Oklahoma law would not consider Defendant as having been
convicted prior to his deporation, the Sentencing Guidelines provide that a deferred sentence is counted for
enhancement purposes under 2L1.2. See U.S.S.G. § 4A1.2(f). See also United States v. Dell, 359 F.3d 1347 (10th
Cir. 2004) (“[W]e are not bound by varied state definitions in determining what constitutes a conviction . . . .”). 
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