Morales v. United States of America

Filing 3

MEMORANDUM AND ORDER entered. The government's motion to dismiss, (Docket No. 250), is granted, and Emique Morales's motion to vacate, set aside, or correct sentence, (Docket No. 244), is denied. Final judgment in the civil case, 4:16-cv-1958, is entered by separate order. (Signed by Chief Judge Lee H Rosenthal) Parties notified. (wbostic, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
UNITED STATES OF AMERICA

V.

ENRIQUE MORALES

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July 26, 2017
David J. Bradley, Clerk

CRIMINAL ACTION NO. H-12-305-1
CIVIL ACTION NO. H-16-1958

MEMORANDUM AND ORDER
Enrique Morales pleaded guilty to conspiring to operate an illegal money-transmitting
business, in violation of 18 U.S.C. § 371, and to conspiring to launder funds, in violation of
18 U.S.C. § 1956(h). See Judgment (Docket Entry No. 191). The court sentenced Morales to a 60month prison term on the transmitting charge and to a consecutive 128-month term on the moneylaundering charge. !d..
Morales has moved to vacate, correct, or set aside his sentence under 28 U.S.C. § 2255,
(Docket Entry No. 244). The governrnent moved to dismiss Morales's motion, (Docket Entry No.
250). Despite requesting and receiving an extension of time to respond, Morales did not respond to
the government's motion.
Morales sued under 28 U.S.C. § 2255, which provides for relief"for errors that occurred at
trial or sentencing." Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). Morales contends that
the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), makes his
sentence unconstitutional.
In Johnson, the Supreme Court held that a provision of the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), was unconstitutionally vague. That Act provides for enhanced
penalties for a defendant convicted of being a felon in possession of a firearm if that defendant has
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three or more prior convictions "for a violent felony or a serious drug offense, or both .... " The
statute defined a "violent felony" as a crime that
(I) has as an element the use, attempted use, or threatened use of
physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another ....
18 U.S.C. § 924(e)(2)(B). The Court held that the clause enhancing penalties for a defendant
previously convicted of a crime that "otherwise involves conduct that presents a serious potential
risk of physical injury to another," was unconstitutionally vague. The Court specifically stated that
the decision did not affect "the remainder ofthe Act's definition of a violent felony." Johnson, 135
S.Ct. at 2563.
Morales was not convicted under the Armed Career Criminal Act, and no similar residual
clause affected his sentence. Because Johnson is not relevant to his case, Morales fails to identify
any constitutional flaw in his sentence. The government's motion to dismiss, (Docket No. 250), is
granted, and Emique Morales's motion to vacate, set aside, or correct sentence, (Docket No. 244),
is denied. Final judgment in the civil case, 4: 16-cv-1958, is entered by separate order.
Morales has not requested a certificate of appealability, but the court may raise the issue on
its own. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) ("It is perfectly lawful for
district court[]s to deny COA sua sponte. The statute does not require that a petitioner move for a
COA; it merely states that an appeal may not be taken without a certificate of appealability having
been issued.") A defendant may obtain a certificate of appealability either from the district court or
an appellate court, but an appellate court will not consider it until the district court has denied the

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request. See Whitehead v. Johnson, 157 F.3d 3 84, 388 (5th Cir. 1988); see also Hill v. Johnson, 114
F.3d 78, 82 (5th Cir. 1997).
A certificate of appealability may issue only if the defendant has made a "substantial showing
of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A defendant "makes a substantial
showing when he demonstrates that his application involves issues that are debatable among jurists
of reason, that another court could resolve the issues differently, or that the issues are suitable
enough to deserve encouragement to proceed further." Hernandez v. Johnson, 213 F.3d 243, 248
(5th Cir.), cert. denied, 531 U.S. 966 (2000). Morales has not made a "substantial showing of the
denial of a constitutional right," 28 U.S.C. § 2253(c)(2), and he is not entitled to a certificate of
appealability.
SIGNED on July 25, 2017, at Houston, Texas.

Lee H. Rosenthal
Chief United States District Judge

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