Opinion
Cause No. 2:13-CR-844-15 Cause No. 2:16-CV-205
04-25-2017
UNITED STATES OF AMERICA, Plaintiff, v. BENJAMIN GUTIERREZ-HERNANDEZ, Defendant.
MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE , SET-ASIDE OR CORRECT SENTENCE AND DENYING A CERTIFICATE OF APPEALABILITY
Benjamin Gutierrez-Hernandez filed a motion vacate, set-aside or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 922. The government responded and moved for summary dismissal. D.E. 988. Gutierrez-Hernandez filed a reply. D.E. 991. Gutierrez-Hernandez' motion is denied and he is also denied a certificate of appealability.
I. BACKGROUND
Gutierrez-Hernandez pleaded guilty to possession with intent to distribute 3.66 grams of heroin and 3 grams of methamphetamine. D.E. 425. The Court sentenced him to 151 months imprisonment as a career offender. Gutierrez-Hernandez did not appeal. He filed the present motion on June 1, 2016.
II. MOVANT'S CLAIMS
Gutierrez-Hernandez challenges the application of the Sentencing Guidelines career offender provisions based upon Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). The government argues that Beckles v. United States, 137 S.Ct. 886, 892 (2017) forecloses the relief Gutierrez-Hernandez seeks.
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
Gutierrez-Hernandez was sentenced as a career offender pursuant to § 4B1.1(b)(2).
The PSR calculated Gutierrez-Hernandez' offense level based on drug quantity to be 12 after acceptance of responsibility and an actual criminal history category of III, his sentencing guideline range would have been 15-21 months imprisonment without the career offender enhancement. See D.E. 336, ¶¶ 56-70.
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. The sentencing guidelines defined crimes of violence to include "burglary of a dwelling, arson, or extortion, involves use of explosives . . . ." U.S.S.G. § 4B1.1.2(a)(2).
Gutierrez-Hernandez had previous convictions for possession with intent to distribute less than 50 kilograms of marijuana in the Western District of Texas in 2013 and burglary of a habitation in San Patricio County, Texas in 1995. Gutierrez-Hernandez challenges his burglary conviction as a proper predicate offense pursuant to Johnson and Mathis v. United States, 136 S.Ct. 2243 (2016).
The Johnson court held that the residual clause defining a violent felony in 18 U.S.C. § 924(e) was unconstitutionally vague. The career offender sentencing guideline § 4B1.2(a)(2) has a residual clause identical to the one held to be void for vagueness in Johnson. However, Johnson did not affect the enumerated provisions of § 924(e)(ii). "Today's decision does 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." Johnson, 135 S.Ct. at 2563. The enumerated provisions of the sentencing guidelines are similarly unaffected by Johnson.
In addition, the Court in Beckles, 137 S.Ct. at 892 held that the sentencing guidelines are not subject to a challenge for vagueness. Beckles was convicted of felon in possession pursuant to 18 U.S.C. § 922(g)(1). He qualified as a career offender under the sentencing guidelines.
Gutierrez-Hernandez argued in his reply that his burglary conviction was pursuant to § 30.02(a)(3) and does not qualify as a predicate offense. The Court reviewed Shepard approved documents including the Indictment and Judgment. The Court used the modified categorical approach to determine the portion of the Texas burglary statue at issue. Gutierrez-Hernandez was charged with burglary by "intentionally and knowingly enter[ing] a habitation without the effective consent of [victim], the owner thereof, with the intent to commit and did commit theft of property . . . ." D.E. 337, pp. 1, 3-7. The language of the Indictment tracks the language in Texas Penal Code § 30.02(a)(1), which is considered generic burglary. See United States v. Conde-Constante, 753 F.3d 172, 176 (5th Cir. 2014). Because Gutierrez-Hernandez' burglary is generic burglary, his enhancement as a career offender was proper and he is not entitled to relief.
(a) 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.
The Court also notes the exhibits Gutierrez-Hernandez attached to his reply. The Court commends Gutierrez-Hernandez on his efforts towards rehabilitation but the Court is not authorized to modify his sentence on that basis alone. See 18 U.S.C. § 3582(c).
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 Gutierrez-Hernandez 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 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).
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 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.
The Court finds that Gutierrez-Hernandez cannot establish at least one of the Slack criteria. Accordingly, he is not entitled to a COA as to his claims.
V. CONCLUSION
For the foregoing reasons, the United States' motion to dismiss (D.E. 988) is GRANTED. Gutierrez-Hernandez' motion (D.E. 922, Cause No. 2:16-CV-205, D.E. 1) is DENIED. Additionally, Gutierrez-Hernandez is DENIED a Certificate of Appealability.
It is so ORDERED this 25th day of April, 2017.
/s/_________
HAYDEN HEAD
SENIOR U.S. DISTRICT JUDGE