Trinidad v. United States of America Do not docket in this case. Docket entries should be made in 6:04-cr-48.

Filing 9

MEMORANDUM OPINION AND ORDER. The Government's 8 Motion for Summary Judgment is Granted, and Movant's 1 Motion to Vacate, Set Aside or Correct Sentence (2255) as to Criminal Case No. 6:04cr48 (Defendant No. 1) is Denied. Additionally, Movant is Denied a Certificate of Appealability. (Signed by Judge John D Rainey.) Parties notified. (yhausmann, 6)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
VICTORIA DIVISION
UNITED STATES OF AMERICA,
Plaintiff/Respondent,
v.
FRANK TRINIDAD,
Defendant/Movant.

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April 12, 2017
David J. Bradley, Clerk

CRIMINAL NO. 6:04-48
CIVIL NO. 6:16-52

MEMORANDUM OPINION & ORDER
Defendant/Movant Frank Trinidad has filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255 and memorandum in support (D.E. 66, 67). Pending before the Court
is the United States of America’s (the “Government”) Motion for Summary Judgment (D.E. 73), to
which Movant has not responded.
I. Background
In November 2004, Movant pled guilty to being a felon in possession of a firearm and
ammunition, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). The firearms and
ammunition involved in the offense were discovered when sheriff’s deputies, who suspected
Movant in a string of residential burglaries in Bee County, Texas, in March and April of 2004,
executed a search warrant at Movant’s residence.
The Presentence Investigation Report (PSR) assigned Movant a base offense level of 24. His
offense level was increased by a total of eight levels because the firearm was stolen, Movant used
the firearm in connection with another felony (burglary of a habitation), and the offense involved
four firearms, for an adjusted offense level of 32. However, based on Movant’s three prior
convictions for violent felonies (all burglary of a habitation with intent to commit theft),1 his
offense level became 34 under the Armed Career Criminal Act. His criminal history points totaled
1. At the time of sentencing, Movant had a total of five prior convictions for burglary of a habitation with
intent to commit theft in the State of Texas. PSR ¶¶ 28–32.
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18, establishing a criminal history category of VI. After credit for acceptance of responsibility,
Movant’s advisory guideline range was 188–235 months’ imprisonment, with a mandatory
minimum sentence of 15 years.
Under the terms of the plea agreement, Movant consented to a sentence at the highest end of
the applicable guideline range. In return, the Bee County District Attorney agreed that he would not
prosecute Movant for the burglaries occurring in Bee County in March and April of 2004 and/or
that were part of the same course of conduct as Movant’s federal offense. Accordingly, the Court
sentenced Movant to 235 months, to be followed by 5 years’ supervised release.
Movant did not appeal his conviction or sentence. He did, however, file a timely § 2255
motion, which the Court denied by Memorandum Opinion & Order and Final Judgment entered
August 6, 2008. D.E. 30, 58, 61. Movant thereafter received permission from the United States
Court of Appeals for the Fifth Circuit to file a successive § 2255 motion asserting relief under
Johnson v. United States, 135 S. Ct. 2551 (2015). D.E. 65. On August 22, 2016, Movant filed his
successive motion under § 2255 and memorandum in support.
II. Legal Standard
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). “Moreover, a
defendant ‘may not raise an issue [constitutional or jurisdictional in nature] for the first time on
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collateral review without showing both ‘cause’ for his procedural default, and ‘actual prejudice’
resulting from the error.’” United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994) (quoting
United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc)).
III. Movant’s Allegations
Movant’s § 2255 motion raises a single claim: In light of Johnson v. United States, 135 S.
Ct. 2551 (2015), his sentence enhancement based on three prior convictions for burglary was
unconstitutional because burglary does not have as an element the use, attempted use, or threatened
use of physical force against the person of another.
IV. Analysis
Movant was sentenced under the Armed Career Criminal Act (ACCA), which provides that
a person who possesses a gun in violation of 18 U.S.C. § 922(g) after sustaining three prior
convictions for a “serious drug offense” or “violent felony” faces a minimum prison term of 15
years and a maximum of life. 18 U.S.C. § 924(e)(1). The ACCA defines the term “violent felony”
to mean any felony that: (i) “has as an element the use, attempted use, or threatened use of physical
force against the person of another;” (ii) “is burglary, arson, or extortion, [or] 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) (emphasis added). The preceding italicized text—also known
as the “residual clause”—was declared unconstitutionally vague by the Supreme Court in Johnson
v. United States, 135 S.Ct. 2551, 2563 (2015). However, the Court further stated that its holding did
“not call into question application of the Act to the four enumerated offenses, or the remainder of
the Act’s definition of a violent felony.” Id.
Burglary is an enumerated “violent felony” under the ACCA. 18 U.S.C. § 924(e)(2)(B)(ii).
Still, in determining whether Movant’s convictions for burglary of a habitation with intent to
commit theft constitute “burglary” for purposes of the ACCA, the Court must compare the elements
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of Movant’s offenses to the “generic, contemporary meaning” of the crime of burglary. See Taylor
v. United States, 495 U.S. 575, 598 (1990). The Supreme Court has concluded that “a person has
been convicted of burglary for purposes of a § 924(e) enhancement if he is convicted of any crime,
regardless of its exact definition or label, having the basic elements of unlawful or unprivileged
entry into, or remaining in, a building or structure, with intent to commit a crime.” Id. at 599
(emphasis added).
Under the Texas burglary statute:
A person commits an offense if, without the effective consent of the owner, the person:
(1) enters a habitation, or a building (or any portion of a building) not then
open to the public, with intent to commit a felony, theft, or an assault; or
(2) remains concealed, with intent to commit a felony, theft, or an assault,
in a building or habitation; or
(3) enters a building or habitation and commits or attempts to commit a
felony, theft, or an assault.
TEX. PENAL CODE § 30.02(a).
The Fifth Circuit has held that a conviction under § 30.02(a)(1) constitutes the generic
offense of “burglary,” while a conviction under the alternative element set forth in § 30.02(a)(3)
does not, because § 30.02(a)(3) does not require that the defendant intend to commit a crime. See
United States v. Conde-Castaneda, 753 F.3d 172, 176 (5th Cir. 2014); United States v. Constante,
544 F.3d 584, 584 (5th Cir. 2008); United States v. Garcia–Mendez, 420 F.3d 454, 456–57 (5th Cir.
2005). Under the modified categorical approach, the Court may “consult Shepard documents to
determine which of the three alternatives of Texas Penal Code § 30.02(a) forms the basis of
[Movant’s] conviction[s]”. Conde-Castaneda, 753 F.3d at 176.
Movant was subject to enhancement under the ACCA based on his three prior convictions
for burglary of a habitation with intent to commit theft in Bexar County, Texas. The indictment in
each case charges that, on or about the relevant date, Movant “did then and there intentionally and
knowingly enter a habitation WITH THE INTENT TO COMMIT THEFT without the effective
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consent of [] the owner of said habitation.” 6:16-cv-52, D.E. 4 (1986CR2505B); D.E. 5
(1990CR3015); D.E. 7 (1990CR4221). The judgment in each case reflects that Movant was
convicted of the charge in the indictment. Id. Although the indictments do not cite a particular
statutory subsection, the language in each indictment tracks the language of § 30.02(a)(1), which
constitutes the generic offense of “burglary.”
In sum, all three of Movant’s prior convictions constitute the enumerated “violent felony” of
“burglary.” Because Movant’s sentence was not enhanced under the residual clause, he remains
subject to the ACCA following Johnson.
V. 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 Movant has not yet filed a notice of appeal, this Court nonetheless
addresses whether he would be entitled to a certificate of appealability (COA). See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (a district court may sua sponte rule on a COA because
“the district court that denies a petitioner relief is in the best position to determine whether the
petitioner has made a substantial showing of a denial of a constitutional right on the issues before
that court. Further briefing and argument on the very issues the court has just ruled on would be
repetitious.”).
A 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
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(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).
Based on the above standards, the Court concludes that Movant is not entitled to a COA—
that is, reasonable jurists could not debate the Court’s resolution of his claims.
VI. Conclusion
For the foregoing reasons, the Government’s motion for summary judgment (D.E. 73) is
GRANTED, and Movant’s motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. §
2255 (D.E. 66) is DENIED. Additionally, Movant is DENIED a Certificate of Appealability.
It is so ORDERED this 11th day of April, 2017.

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JOHN D. RAINEY
SENIOR U.S. DISTRICT JUDGE

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