De La Cruz-Aguilar v. United States Of America DO NOT DOCKET. DOCUMENTS SHOULD BE FILED IN CRIMINAL CASE #2:12cr917-1.

Filing 2

MEMORANDUM OPINION AND ORDER. De La Cruz-Aguilar's 1 Motion to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 2:12cr917 (Defendant No. 1) is Denied, and this action is Dismissed with prejudice. Additionally, he is Denied a Certificate of Appealability. (Signed by Judge John D Rainey.) Parties notified. (yhausmann, 6)

Download PDF
United States District Court Southern District of Texas ENTERED IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION UNITED STATES OF AMERICA v. PEDRO DE LA CRUZ-AGUILAR. § § § § § January 31, 2017 David J. Bradley, Clerk Cr. No. 2:12-917 (CA. No. 2:16-207) MEMORANDUM OPINION AND ORDER Pedro De La Cruz-Aguilar (De La Cruz-Aguilar) filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 28. The Court has reviewed the § 2255 motion and concludes that summary dismissal is appropriate because “it plainly appears from the motion . . . and the record of prior proceedings that the moving party is not entitled to relief.” Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts (2016) (2255 Rules). I. BACKGROUND De La Cruz-Aguilar pled guilty to possession with intent to distribute more than 500 grams of cocaine. He was sentenced to 188 months’ imprisonment as a career offender. Judgment was entered on April 17, 2013. He did not appeal. De La Cruz-Aguilar filed his present motion on May 26, 2016, asserting relief under Johnson v. United States, 135 S.Ct. 2551 (2015). It is timely. 28 U.S.C. § 2255(f)(3). II. MOVANT’S CLAIMS De La Cruz-Aguilar challenges his sentence under Johnson, arguing that Johnson precludes the use of the residual clause in the Sentencing Guidelines. 1 III. ANALYSIS A. 28 U.S.C. § 2255 There are four cognizable grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: 1) constitutional issues, 2) challenges to the district court’s jurisdiction to impose the sentence, 3) challenges to the length of a sentence in excess of the statutory maximum, and 4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). “Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.” United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). B. Johnson Claim De La Cruz-Aguilar was sentenced as a career offender pursuant to § 4B1.1(b)(2).1 A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense. Id. De La Cruz-Aguilar was in his 40s at the time of the offense and had three previous controlled substance offenses: (1) 1996 Possession of marijuana with intent to deliver in Arkansas, (2) 1997 possession of cocaine with intent to deliver in Arkansas, and (3) possession with intent to distribute one kilogram of marijuana in the Southern District of Texas. As a result, De La Cruz-Aguilar qualified as a career offender. 1. The PSR calculated De La Cruz-Aguilar’s offense level based on drugs to be 30. After acceptance of responsibility, his total offense level of 27. His criminal history category was V. 2 The Johnson Court held that the residual clause defining a violent felony in 18 U.S.C. § 924(e) was unconstitutionally vague; however, De La Cruz-Aguilar was not sentenced or enhanced based upon a violent felony or that statute. Although Johnson is retroactive, it has no application to De La Cruz-Aguilar’s sentence. IV. CERTIFICATE OF APPEALABILITY An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(A). Although De La Cruz-Aguilar has not yet filed a notice of appeal, the § 2255 Rules instruct this Court to “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, § 2255 Rules. A certificate of appealability (COA) “may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “The COA determination under § 2253(c) requires an overview of the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). To warrant a grant of the certificate as to claims denied on their merits, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). This standard requires a § 2255 movant to demonstrate that reasonable jurists could debate whether the motion should have been resolved differently, or that the issues presented deserved encouragement to proceed further. United States v. Jones, 287 F.3d 325, 329 (5th Cir. 2002) (relying upon Slack, 529 U.S. at 483–84). As to claims that the district court rejects solely on procedural grounds, the movant must show both that “jurists of reason would find it debatable whether the petition states a valid 3 claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484 (emphasis added). The Court finds that De La Cruz-Aguilar cannot establish at least one of the Slack criteria. That is, reasonable jurists could not debate the Court’s resolution of his claims, nor do these issues deserve encouragement to proceed. See Jones, 287 F.3d at 329. Accordingly, he is not entitled to a COA as to his claims. V. CONCLUSION For the foregoing reasons, De La Cruz-Aguilar’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 (D.E. 28) is DENIED, and this action is DISMISSED with prejudice. Additionally, he is DENIED a Certificate of Appealability. It is so ORDERED this 31st day of January, 2017. ____________________________________ JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?