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Muniz-Gutierrez v. United States

United States District Court, N.D. Texas, Dallas Division

March 7, 2017

MIGUEL MUNIZ-GUTIERREZ, ID # 80989-080, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

         Pursuant 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.

         I. BACKGROUND

         Miguel 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).

         A. Plea and Sentencing

         On May 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. 1.)[1] On September 12, 2013, he pled guilty. (Docs. 31 at 1; 34 at 12.)

         On 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.)

         Prior 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.)

         At the 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.)

         B. Appeal

         On 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.

         The 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).

         C. Substantive Claims

         Movant 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 ...

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