Bejar-Vega v. USA

Filing 5

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 1/17/2017) (axm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
JUAN CARLOS BEJAR-VEGA,
#48155-177
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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CIVIL NO. 3:16-CV-1843-K
(CRIMINAL NO. 3:14-CR-221-K-4)

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.”).
I. BACKGROUND
In November 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. 221; Crim. Doc.
410. Defendant did not pursue a direct appeal. Then on June 28, 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.
2 at 2, 4-6. See also United States v. Welch, ___ U.S. ___, 136 S. Ct. 1257 (2016) (finding
Johnson retroactively applicable to cases on collateral review). Petitioner also seeks a
reduction based on his minor role in the offense. Doc. 2 at 7.
II. ANALYSIS
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.
A. Johnson v. United States
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 without

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change) calculated Petitioner’s adjusted offense level for conspiracy to possess with
intent to distribute methamphetamine and the two level 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. 288-1 at 14, PSR
¶¶ 42-49; Crim. Doc. 411 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.
B. Reduction based on Minor Role
Petitioner also seeks a reduction based on his minor role in the offense.
However, he did not object to the conclusion in the PSR that no adjustment for role
in the offense was warranted, or to the Court’s adoption of the PSR “without change.”
See Crim. Doc. 288-1 at 14, PSR ¶ 47; Crim. Doc. 411 at 1, SOR.

That

notwithstanding, such a claim is not cognizable in this collateral proceeding. “Section
2255 motions may raise only constitutional errors and other injuries that could not
have been raised on direct appeal that will result in a miscarriage of justice if left
unaddressed. Misapplications of the Sentencing Guidelines fall into neither category

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and hence are not cognizable in § 2255 motions. United States v. Williamson, 183 F.3d
458, 462 (5th Cir. 1999) (internal citation omitted); (citing United States v. Segler, 37
F.3d 1131, 1134 (5th Cir.1994); United States v. Faubion, 19 F.3d 226, 233 (5th Cir.
1994).
III. CONCLUSION
Accordingly, the motion to vacate sentence under 28 U.S.C. § 2255 is
summarily DISMISSED WITH PREJUDICE.
SO ORDERED.
Signed January 17th, 2017.

__________________________________
ED KINKEADE
UNITED STATES DISTRICT JUDGE

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