United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE
to Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Based on the relevant findings and applicable
law, the Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody, received February 26, 2015 (doc. 2), should be
DENIED with prejudice.
Muniz-Gutierrez (Movant) challenges his federal conviction
and sentence in Cause No. 3:13-CR-181-O. The respondent is
the United States of America (Government).
Plea and Sentencing
21, 2013, Movant was charged by indictment with illegal
reentry after removal from the United States in violation of
8 U.S.C. § 1326(a), (b)(2). (See doc.
On September 12, 2013, he pled guilty. (Docs. 31 at 1; 34 at
November 11, 2013, the United States Probation Office (USPO)
prepared a Presentence Report (PSR), applying the 2012 United
States Sentencing Guidelines Manual (USSG). (See
doc. 26-1 at 5, ¶ 21.) It found a base offense level of
8. (See id. at 5, ¶ 22.) The offense level was
increased by 16 levels under USSG § 2L1.2(b)(1)(A)(i)
because Movant had previously been deported after a felony
conviction for unlawful delivery of a controlled substance in
Cause No. F04-50747 (a drug trafficking conviction for which
the sentence imposed exceeded 13 months and for which he
received criminal history points). (See id. at 5,
¶ 23.) The offense level was reduced by two levels for
acceptance of responsibility, resulting in a total offense
level of 22. (See id. at 5-6, ¶¶ 29-30.)
With a criminal history category of four, the guideline range
was 63 months to 78 months of imprisonment. (See id.
at 12, ¶ 67.)
to sentencing, Movant signed a sentencing agreement in which
he waived the right to contest his conviction and sentence in
any direct appeal or collateral proceeding, except to bring a
direct appeal challenging his sentence as either exceeding
the statutory maximum punishment or having been calculated by
way of an arithmetic error, or to challenge the voluntariness
of his plea or waiver and to bring a claim of ineffective
assistance of counsel. (See doc. 32.) In exchange,
the Government agreed to move for a one-level decrease in his
sentencing guideline. (See id.)
sentencing hearing on January 9, 2014, the Government moved
for the one-level reduction, which was granted. (See
doc. 35 at 4, 6.) The one-level reduction resulted in a
guideline range of 57 months to 71 months of imprisonment.
(See doc. 35 at 6.) Movant received a sentence of 70
months' imprisonment. (See doc. 31 at 2.)
appeal, Movant's Anders brief argued that the
appellate waiver was unenforceable because the Court did not
personally address Movant to determine whether the waiver was
knowing and voluntary. See United States v.
Muniz-Gutierrez, No. 14-10074 (5th Cir.),
Appellant's Initial Brief pursuant to Anders v.
California, 386 U.S. 738 (1967), at 6. In response,
Movant argued that his prior conviction that was used for a
16-level increase was not an aggravated felony and was barred
by the statute of limitations. See id.,
Appellant's pro se response to the
Anders brief, at 1-2. Appellate counsel was ordered
to, and did file, a supplemental brief arguing that the prior
conviction for delivery of a controlled substance was not an
aggravated felony under 8 U.S.C. § 1326(b)(2). See
id., Appellant's brief, at 9.
Government moved to dismiss the appeal based on the appellate
waiver, arguing that the fact the Court did not personally
admonish Movant about the appellate waiver did not render the
waiver involuntary or unknowing. See id.,
Government's Opposed Motion to Dismiss the Appeal, at
2-6. The Fifth Circuit granted the motion and dismissed the
appeal. See id. (5th Cir. Jan. 14, 2015).
raises the following grounds:
(1) His prior conviction did not qualify for enhancement as
an aggravated felony;
(2) He was punished twice for the prior conviction because of
its use under 8 ...