Beltran v. United States of America Do not docket in this case. File only in 4:15CR596

Filing 2

Copy of MEMORANDUM OPINION AND ORDER dismissing with prejudice 1 MOTION to Vacate, Set Aside or Correct Sentence 2255) as to Criminal Case No. 15-596 (Docket Entry No. 32). Case terminated on 9/29/2017. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

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

EPITACIO NUNEZ BELTRAN,

§
§
§
§
§
§
§
§
§

Petitioner,
v.

UNITED STATES OF AMERICA,
Respondent.

September 29, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-2802
(Criminal No. H-15-596-01)

MEMORANDUM OPINION AND ORDER

Petitioner, Epitacio Nunez Beltran, has filed a Motion Under
28 U.S.C.

§

2255 to Vacate,

Set Aside,

or Correct Sentence By a

Person in Federal Custody ("§ 2255 Motion")

(Docket Entry No. 29) . 1

On January 8, 2016, petitioner pleaded guilty to illegal reentry
after a felony conviction in violation of 8 U.S.C.
(b) (1);

and on March

28,

2016,

petitioner was

§

1326(a) and

sentenced to a

within-guideline-range sentence of fourteen months in prison and
three years of supervised release

(Judgment in a Criminal Case,

Docket Entry No. 25).
At Beltran's sentencing his attorney requested that Beltran
receive credit for the time he had spent in state custody awaiting
trial on unrelated state charges or that the court order that his
federal and state sentences be served concurrently.

The court

declined to do so, explaining:
1

All docket entry references are to Criminal No. H-15-596.

THE COURT:

I think the appropriate guideline sentence
here is 14 months, and that will be the
Court's sentence.
I am not inclined to give [Beltran] credit
for time in state custody because these
facts don't warrant it. He came here and
commit ted another serious crime.
It' s
really up to the second sentencing judge
to determine whether his sentence runs
consecutive or concurrently.
Certainly,
the state conduct is not something that
factored into his guidelines in this case.
So
I'm
not
going
to
make
any
recommendation
as
to
consecutive
or
concurrent sentences.
You can ask the
state court judge to do so, if you want.

Transcript of March 24, 2016, Hearing on Sentencing, Docket Entry
No. 30, p. 5 lines 13-24.
Beltran states no grounds for relief.

Instead, he states:

There are no formal violations of constitutional laws
being claimed. The primary objective of this motion is
to request for state and federal convictions to be ran
concurrent in effort to expedite deportation process
upon release approval.
Section 2255 Motion, Docket Entry No. 29, p. 3.
The court has carefully reviewed Beltran's motion as required
by Rule 4(b) of the Rules Governing Section 2255 Proceedings for
the United States District Courts and concludes that a response to
his motion is not required.
"Relief

under

28

U.S.C.A.

§

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
-2-

367,

368

(5th

Cir.

1992).

"Following a conviction and exhaustion or waiver of the right to
direct appeal,

[the court] presume[s] a defendant stands fairly and

finally convicted."

United States v.

1109 (5th Cir. 1998).

Cervantes,

132 F.3d 1106,

Therefore, only two types of claims may be

raised in a § 2255 motion.

First, a § 2255 petitioner may raise a

constitutional or jurisdictional claim.

Second,

a

§ 2255

petitioner may assert any other type of claim that could not have
been raised on direct appeal.

Id.

To obtain relief on this second

type of claim the petitioner must show that allowing the asserted
error to stand "would result in a complete miscarriage of justice."

Whether to afford a defendant credit for time served in state
custody by departing downward under U.S.S.G. § 2L1.2, comment (n.6)
and

whether

to

run

the

defendant's

consecutively under§ SG1.3(d)
Because

Beltran

application of

failed
the

to

sentences

concurrently

or

are guideline application issues.

raise

his

challenge

Sentencing Guidelines

cannot do so now in a § 2255 proceeding.

to

on direct

the

court's

appeal,

he

See Vaughn, 955 F.2d at

368 (explaining that "[a] district court's technical application of
the Guidelines does not give rise to a constitutional issue" and
that "[n]on-constitutional claims that could have been raised on
direct appeal,

but were not,

may not be asserted in a

[§ 2255]

proceeding").

Because Beltran is not entitled to relief under

§ 2255, his motion will be dismissed pursuant to Rule 4(b).

-3-

Accordingly,
Vacate,

Set Aside,

Beltran's Motion Under

28

or Correct Sentence By a

U.S.C.

§

2255

to

Person in Federal

Custody (Docket Entry No. 29) is DISMISSED WITH PREJUDICE.
The Clerk of Court is ORDERED to provide a copy of this
Memorandum Opinion and Order to Epitacio Nunez Beltran and to the
United States Attorney for the Southern District of Texas, and to
file

a

copy

of

this

Memorandum

Opinion

and

Order

in

the

corresponding civil action.
SIGNED at Houston, Texas, this 29th day of September, 2017.

UNITED STATES DISTRICT JUDGE

-4-