Sanchez-Sanchez v. USA

Filing 9

MEMORANDUM OPINION AND ORDER denying 8 MOTION for Reconsideration re 7 Judgment filed by Jose Alfredo Sanchez-Sanchez. (Ordered by Judge Sidney A Fitzwater on 2/6/2017) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JOSE ALFREDO SANCHEZ-SANCHEZ §
(BOP Register No. 90889-079),
§
§
Movant,
§
§ Civil Action No. 3:16-CV-1434-D
VS.
§
§
UNITED STATES OF AMERICA,
§
§
Respondent. §
MEMORANDUM OPINION
AND ORDER
Movant Jose Alfredo Sanchez-Sanchez (“Sanchez”) moves for reconsideration under
Fed. R. Civ. P. 59(e) to alter or amend the court’s July 11, 2016 judgment summarily
dismissing his motion for habeas relief under 28 U.S.C. § 2255. See Patin v. Allied Signal,
Inc., 77 F.3d 782, 785 n.1 (5th Cir. 1996).* For the reasons that follow, the court denies the
motion.
In this, his initial 28 U.S.C. § 2255 motion to vacate, set aside, or correct sentence,
Sanchez relies on two recent decisions to challenge a 12-level enhancement to his 2013
illegal

reentry

sentence.

The

applicable

enhancement—under

U.S.S.G.

§ 2L1.2(b)(1)(A)(ii)—was based on the determination that Sanchez’s 1990 Texas felony
conviction for aggravated assault with a deadly weapon is a “crime of violence.” The first
*

A Rule 59(e) motion must be filed within 28 days of judgment (as Sanchez has done),
and such motions are allowed in federal habeas practice. See, e.g., United States v.
Jaimes-Valdez, 2011 WL 4344096, at *1 (S.D. Tex. Sept. 14, 2011) (citing Rule 12, Section
2255 Rules).

decision applicable to the § 2255 motion is Johnson v. United States, ___ U.S. ___, 135 S.
Ct. 2551 (2015), in which the Supreme Court of the United States held “that imposing an
increased sentence under the residual clause of the Armed Career Criminal Act [the
“ACCA”] violates the Constitution’s guarantee of due process,” id. at 2563, a decision the
Supreme Court made retroactively applicable in Welch v. United States, ___ U.S. ___, 136
S. Ct. 1257 (2016). The second is United States v. Gonzalez-Longoria, 813 F.3d 225 (5th
Cir. 2016), in which a panel of the United States Court of Appeals for the Fifth Circuit,
applying Johnson, held that 18 U.S.C. § 16’s statutory definition of “crime of violence” is
unconstitutionally vague. The en banc Fifth Circuit later reversed the panel decision and
held “that 18 U.S.C. § 16(b) is not unconstitutionally vague.”

United States v.

Gonzalez-Longoria, 831 F.3d 670, 672 (5th Cir. 2016) (en banc). The Supreme Court has
granted certiorari to consider whether § 16(b), as incorporated into the Immigration and
Nationality Act’s provisions governing an alien’s removal from the United States, is
unconstitutionally vague. See Lynch v. Dimaya, No. 15-1498, 137 S. Ct. 31 (2016).
In the instant case, following an independent review of the pleadings, files, and
records in this case, the court adopted the magistrate judge’s findings, conclusions, and
recommendation, and summarily dismissed Sanchez’s § 2255 motion on the basis that neither
Johnson nor the panel decision in Gonzalez-Longoria is applicable to the sentencing
enhancement that Sanchez challenges. Sanchez now asserts that the court should reconsider
that conclusion, primarily in light of Beckles v. United States, No. 15-8544, 136 S. Ct. 2510
(2016), and Mathis v. United States, ___ U.S. ___, 136 S. Ct. 2243 (2016).
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The Supreme Court has granted certiorari in Beckles to address whether Johnson
applies retroactively to collateral cases challenging federal sentences enhanced under the
residual clause in U.S.S.G. § 4B1.2(a)(2), and whether Johnson’s constitutional holding
applies to the residual clause in § 4B1.2(a)(2), thereby rendering challenges to sentences
enhanced under that provision cognizable on collateral review. This court has already
explained, however, that “even if Johnson’s holding applies to the Guidelines directly, that
holding still offers [Sanchez] no relief,” because neither definition of “crime of violence”
under § 2L1.2(b)(1)(A)(ii)—as an enumerated offense or under that section’s “catch-all”
provision—is “the same as ‘violent felony’ as defined in ACCA.” Sanchez-Sanchez v.
United States, 2016 WL 3752975, at *4 (N.D. Tex. May 31, 2016) (Horan, J.) (citing United
States v. Contreras, 739 F.3d 592, 598 (11th Cir. 2014) (“[W]hether a crime constitutes a
‘violent felony’ under the ACCA involves an inquiry strikingly similar to that in determining
whether a conviction is a ‘crime of violence’ under U.S.S.G. § 4B1.1(a) inasmuch as the
definitions for both are virtually identical. However, the sentencing guideline at issue in this
case, U.S.S.G. § 2L1.2, defines ‘crime of violence’ very differently than the ACCA does, so
cases dealing with the definition of a ‘violent felony’ under the ACCA are not applicable
here.”)), rec. adopted, 2016 WL 3670041 (N.D. Tex. July 11, 2016) (Fitzwater, J.).
The decision in Mathis also provides no basis to reconsider the court’s summary
dismissal of Sanchez’s motion to vacate.
Mathis resolved a circuit split about when the modified
categorical approach can be applied to try to narrow a statute
when a court is considering whether that statute qualifies as a
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certain type of offense under federal criminal and immigration
laws . . . . Mathis held that only the elements matter. So when
a statute merely sets out multiple means for committing a crime,
some of which match the generic offense and others that do not,
the ordinary categorical approach applies and there is no match
to the generic offense.
Gomez-Perez v. Lynch, 829 F.3d 323, 326-27 (5th Cir. 2016) (cited in the motion to
reconsider).
The modified categorical approach may only be applied where a statute is
“divisible”—that is, the statute “‘sets out one or more elements of the offense in the
alternative—for example, stating that burglary involves entry into a building or an
automobile.’” United States v. Hinkle, 832 F.3d 569, 573 (5th Cir. 2016) (quoting Descamps
v. United States, ___ U.S. ___, 133 S. Ct. 2276, 2281 (2013)). Under this approach, “a court
may look to certain documents, including the indictment and the judgment, to narrow an
offense that otherwise would not be a categorical match with an enumerated offense.”
Gomez-Perez, 829 F.3d at 326; see also Descamps, 133 S. Ct. at 2281 (“If one alternative
(say, a building) matches an element in the generic offense, but the other (say, an
automobile) does not, the modified categorical approach permits sentencing courts to consult
a limited class of documents, such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant's prior conviction.”).
In Gomez-Perez the Fifth Circuit “applied Mathis to determine that the Texas simple
assault statute was not divisible with respect to the mens rea requirement.” United States v.
Villasenor-Ortiz, ___ Fed. Appx. ____, 2017 WL 113917, at *3 n.6 (5th Cir. Jan. 11, 2017)

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(citing Gomez-Perez, 829 F.3d at 328). And in Villasenor-Ortiz the Fifth Circuit determined
that a subsequent version of Texas’ aggravated assault statute is divisible under Mathis, see
id. at *3, but the court of appeals declined to “express [an] opinion as to the effect, if any, of
Mathis on” the version of that statute applicable to Sanchez’s 1990 conviction, id. at *3 n.8.
While the Fifth Circuit has not stated definitively that the applicable statute remains
a generic offense after Mathis, Sanchez has not shown that Mathis should be applied in postconviction proceedings like this one because that decision announced a new right made
retroactive on collateral review. See Teague v. Lane, 489 U.S. 288, 301 (1989) (plurality
opinion) (“[A] case announces a new rule if the result was not dictated by precedent existing
at the time the defendant's conviction became final.” (emphasis in original)). As the United
States Court of Appeals for the Tenth Circuit recently observed, “the Supreme Court
explicitly stated in Mathis that it was not announcing a new rule and that its decision was
dictated by decades of prior precedent . . . . Thus, Mathis did not announce a new rule. And
courts applying Mathis have consistently reached the same conclusion.” United States v.
Taylor, ___ Fed. Appx. ____, 2016 WL 7093905, at *4 (10th Cir. Dec. 6, 2016) (collecting
cases).

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For these reasons, treating Sanchez’s motion for reconsideration as a Rule 59(e)
motion to alter or amend the judgment, the motion is denied.
SO ORDERED.
February 6, 2017.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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