Cabrera-Valencia v. USA
MEMORANDUM OPINION AND ORDER: The motion to vacate sentence under 28 U.S.C. § 2255 is summarily DISMISSED WITH PREJUDICE. (Ordered by Judge Ed Kinkeade on 1/13/2017) (twd) (Main Document 5 replaced on 1/13/2017) (twd).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
UNITED STATES OF AMERICA,
CIVIL NO. 3:16-CV-1797-K
(CRIMINAL NO. 3:14-CR-221-K-5)
MEMORANDUM OPINION AND ORDER
Before the Court is Petitioner’s motion to vacate, set aside, or correct sentence
under 28 U.S.C. § 2255. Upon review of the relevant pleadings and law, and for the
reasons that follow, it is recommended that the section 2255 motion be summarily
DISMISSED WITH PREJUDICE. See Rule 4(b) of the Rules Governing Section
2255 Proceedings for the United States District Courts (“If it plainly appears from the
motion, any attached exhibits, and the record of prior proceedings that the moving
party is not entitled to relief, the judge must dismiss the motion and direct the clerk to
notify the moving party.”).
In December 2014, Petitioner pled guilty to conspiracy to possess with intent to
distribute methamphetamine and, on June 24, 2015, was sentenced to 180 months’
imprisonment and a four-year term of supervised release. Crim. Doc. 249; Crim. Doc.
412. Defendant did not pursue a direct appeal. Then on June 27, 2016, Petitioner
filed this timely, pro se motion to vacate sentence, seeking relief based on the holding
in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2563 (2015), that imposing
an increased sentence under the residual clause of the Armed Career Criminal Act
(ACCA), 28 U.S.C. § 924(e), violates the Constitution’s guarantee of due process. Doc.
3 at 2, 7-8. See also United States v. Welch, ___ U.S. ___, 136 S. Ct. 1257 (2016) (finding
Johnson retroactively applicable to cases on collateral review).
After conviction and exhaustion or waiver of the right to direct appeal, the Court
presumes that a petitioner stands fairly and finally convicted. See United States v.
Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998) (citing United States v. Shaid, 937 F.2d
228, 231-32 (5th Cir.
1991) (en banc)).
Under section 2255 a petitioner can
collaterally challenge his conviction only on constitutional or jurisdictional grounds.
See United States v. Willis, 273 F.3d 592, 595 (5th Cir. 2001). Here, Petitioner has
failed to raise a cognizable issue.
Petitioner’s reliance on Johnson is misplaced.
Johnson has no bearing on
Petitioner’s case, since his sentence was not increased under the ACCA’s residual clause
-- the only provision that Johnson found to be unconstitutional. See Johnson, ___ U.S.
___, 135 S. Ct. at 2563 (calling into question only the residual clause of the ACCA).
Rather the Presentence Report (PSR) (which was adopted at sentencing except for an
agreed adjustment for role in the offense) calculated Petitioner’s adjusted offense level
for conspiracy to possess with intent to distribute methamphetamine and the two level
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enhancement for possession of a dangerous weapon under U.S.S.G. § 2D1.1 (the drug
trafficking guideline), without reference to the ACCA or U.S.S.G. § 4B1.4. See Crim.
Doc. 321-1 at 11, PSR ¶¶ 36-43; Crim. Doc. 413 at 1, Statement of Reasons (SOR).
Additionally, even assuming the Supreme Court finds Johnson retroactively
applicable to the career offender provision of the Sentencing Guidelines, see Beckles v.
United States, 616 Fed. Appx. 415 (11th Cir. 2015), cert. granted, ___ U.S. ___, 136 S.
Ct. 2510 (2016), as previously noted, Petitioner was not sentenced as a career offender.
Thus, his claims are not premised on a penal statute or Sentencing Guidelines provision
that contains or incorporates any clauses resembling the ones found unconstitutional
in Johnson. Therefore, Johnson is not applicable in this case.
Accordingly, the motion to vacate sentence under 28 U.S.C. § 2255 is
summarily DISMISSED WITH PREJUDICE.
SIGNED January 12th, 2017.
UNITED STATES DISTRICT JUDGE
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