Lopez-Delgado v. United States of America

Filing 8

OPINION AND ORDER as to Mario Antonio Lopez-Delgado re 6 Opposed MOTION to Dismiss Section 2255 Motion, 1 MOTION to Vacate under 28 U.S.C. 2255. Should Petitioner seek a certificate of appealability, such is DENIED. Case terminated on 2/10/2017.(Signed by Judge Micaela Alvarez) Parties notified.(bgarces, 7)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
MCALLEN DIVISION

United States District Court
Southern District of Texas

ENTERED
February 10, 2017
David J. Bradley, Clerk

MARIO ANTONIO LOPEZ-DELGADO
Plaintiff
VS.
UNITED STATES OF AMERICA

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§
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§ CIVIL ACTION NO. 7:16-CV-398
§ Criminal No. 7:14-cr-1108
§

OPINION AND ORDER
Pending before the Court is a Motion Under 28 U.S.C. ' 2255 to Vacate, Set Aside, or Correct Sentence
by a Person in Federal Custody1 filed by Petitioner Mario Antonio Lopez-Delgado (APetitioner@) to which the
Government responded with a Motion to Dismiss.2 After considering Petitioner’s motion, the Government’s
motion to dismiss and applicable law, the Government’s motion is GRANTED and Petitioner’s motion is
DISMISSED.
I.

Brief Background

Petitioner was charged and convicted of violating 8 U.S.C. 1326. He was subsequently sentenced to a
term of imprisonment which he is currently serving. Petitioner=s judgment is now final as he did not appeal his
judgment and the time for appeal has now expired. In the instant motion, Petitioner asserts he is entitled to
relief pursuant to Johnson v. United States.3
II.

Discussion

Under Title 28, United States Code, Section 2255 a federal prisoner who claims that his Asentence was
imposed in violation of the Constitution or laws of the United States . . . or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed
the sentence to vacate, set aside or correct the sentence.@4 Upon the filing of such a petition, the sentencing
court must order a hearing to determine the issues and findings of fact A[u]nless the motions and the files and
records of the case conclusively show that the prisoner is entitled to no relief . . . .@5
Here, Petitioner claims relief pursuant to Johnson v. United States.6 Because Petitioner raises a
constitutional challenge to his sentence, his motion is properly asserted pursuant to 28 U.S.C. ' 2255.
However, Petitioner=s motion fails for two reasons.

1

Dkt. No. 1.
Dkt. No. 6.
3
135 S. Ct. 2552 (2016).
4
28 U.S.C. ' 2255.
5
Id.
6
135 S.Ct. 2551 (2015).
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2

In Johnson v. United States, the Supreme Court found the Aresidual clause@ of the Armed Career
Criminal Act (AACCA@) to be unconstitutionally vague7 and then in Welch v. United States8 the Supreme Court
held that the Johnson holding should be applied retroactively. Thus, a prisoner sentenced pursuant to the
ACCA may be entitled to relief. Significant to the Court=s decision here, Petitioner was not sentenced under the
ACCA. Rather, Petitioner was convicted of violating 8 U.S.C. ' 1326 and was sentenced pursuant to that
statute. To the extent Petitioner claims the Johnson holding is applicable to sentencing guideline enhancements
based on the crime of violence definition found in 18 U.S.C. ' 16(b), the Fifth Circuit very recently rejected that
argument in United States v. Gonzalez-Longoria.9 Furthermore, Petitioner did not receive a ' 16(b)
enhancement. Therefore, Johnson does not afford Petitioner any relief.
III.

Conclusion

It is clear from the face of Petitioner's Motion, as well as the record as it currently stands, that Petitioner
is not entitled to relief under 28 U.S.C. ' 2255. Accordingly, the Government’s motion to dismiss is
GRANTED and Petitioner's Motion to Correct, Vacate, or Set Aside Sentence is DISMISSED. Additionally,
should Petitioner seek a certificate of appealability, such is DENIED.
IT IS SO ORDERED.
DONE at McAllen, Texas, this 10th day of February, 2017.

________________________________
Micaela Alvarez
United States District Judge

7

Id.
136 S.Ct. 1257 (2016).
9
No. 15-40041 (Fifth Circuit filed August 5, 2016).
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