U.S. v. Morales-Gomez

Full title: UNITED STATES OF AMERICA v. HUMBERTO MORALES-GOMEZ

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Apr 29, 2005

2:03-CR-0107 (01) (N.D. Tex. Apr. 29, 2005)

Opinion

2:03-CR-0107 (01).

April 29, 2005

REPORT AND RECOMMENDATION TO DENY MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE

CLINTON AVERITTE, Magistrate Judge

On April 4, 2005, defendant HUMBERTO MORALES-GOMEZ filed with this Court a Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody, wherein he challenges a 45-month sentence assessed on or about December 23, 2003 after his conviction, pursuant to a guilty plea, for the offense of illegal reentry after deportation following conviction for a felony. For the reasons set forth below, defendant is not entitled to relief and this motion should be denied.

I. MERITS

Defendant challenges his sentence based upon the recent United States Supreme Court decision in United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621, 73 U.S.L.W. 4056 (January 12, 2005). In Booker, the Supreme Court extended the rule announced in the prior decisions of Apprendi v. New Jersey; 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403, 72 U.S.L.W. 4546 (June 24, 2004), to the federal Sentencing Guidelines. The rule, essentially held that,

[P]ursuant to the Sixth Amendment, any fact, other than the fact of a prior conviction, "which is necessary to support a sentence exceeding the maximum authorized by the facts established by a plea of guilty or a jury verdict must be admitted by the defendant or proved to a jury beyond a reasonable doubt." 125 S. Ct. at 756. A different majority of the Court then excised certain statutory provisions that made the Guidelines mandatory, thereby rendering the Guidelines advisory only. Id. at 756-57.

In re Elwood, No. 05-30269 at 2, April 28, 2005 (5^th Cir. 2005) citing Booker. Defendant Elwood, just as Morales-Gomez in the instant case, alleged that, pursuant to Booker, the district court's application of the Guidelines in determining his sentence violated his Sixth Amendment rights. The Fifth Circuit has held, however, that the United States Supreme Court did not make Booker retroactive to cases on collateral review. In re Elwood, No. 05-30269 at 3.

Therefore, under the law of this circuit, defendant's claim that his sentence, assessed under the federal Sentencing Guidelines, is unconstitutional based upon Booker and, thus, should be vacated, is foreclosed. Such a claim is not cognizable in a section 2255 action.¹

1 This analysis assumes for purposes of argument, that defendant MORALES-GOMEZ even has a possible Booker claim. Since MORALES-GOMEZ's sentence enhancement was based upon a prior conviction, Booker would arguably not apply, even if it were retroactive.

II. RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the motion to vacate, correct or set aside sentence filed by defendant HUMBERTO MORALES-GOMEZ be DENIED.

III. INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file marked copy of this Report and Recommendation to defendant by certified mail, return receipt requested, and to each attorney of record by the most efficient means available.

IT IS SO RECOMMENDED.