United States District Court, S.D. Texas, Brownsville Division
MAGISTRATE JUDGE'S REPORT AND
Ignacio Torteya, III United States Magistrate Judge.
Court is in receipt of Vincente Muro Gomez's pro se
“Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal
Custody” (Dkt. No. 1-2) and “Memorandum in
Support of His Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence by a Person in Federal
Custody, ” (Dkt. No. 1) (herein after Gomez's
“Motion” or § 2255
Motion”). For the reasons provided below,
Gomez's § 2255 Motion lacks merit. Therefore,
pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings for the United States District Courts, it is
recommended that Gomez's § 2255 Motion be summarily
dismissed with prejudice. Additionally, it is recommended
that the Court decline to issue a certificate of
Court has jurisdiction over Gomez's § 2255 Motion
pursuant to 28 U.S.C. § 1331 and § 2255.
October 5, 2010, Gomez pleaded guilty to being an alien
unlawfully found in the United States after deportation,
having previously been convicted of a felony, in violation of
8 U.S.C. §§ 1326(a) and 1326(b)(1). See United
States of America v. Vincente Muro Gomez, No.
1:10-cr-1055-1, Dkt. No. 21 at 1. On January 11, 2011, United
States District Judge Hilda Tagle sentenced Gomez to 33
months of imprisonment and a two-year term of supervised
release. Id. at 1-2. Judgment was entered on January
13, 2011. Id. at 1. Gomez did not file a direct
appeal. However, after his release from custody, Gomez was
again unlawfully found in the United States. On February 25,
2015, Gomez again pleaded guilty to being an alien unlawfully
found in the United States after deportation, having
previously been convicted of a felony, in violation of 8
U.S.C. §§ 1326(a) and 1326(b)(1). See United
States of America v. Vincente Muro Gomez, No.
1:15-cr-111-1, CR Dkt. No. 23 at 1. Judge Tagle sentenced
Gomez to 57 months imprisonment and gave him an additional 6
month sentence for the violation of the supervised release
pertaining to his 2010 conviction. Id. at 2;
United States of America v. Vincente Muro Gomez, No.
1:10-cr-1055-1, CR Dkt. No. 28 at 2. Gomez filed his instant
§ 2255 Motion on June 13, 2016. Dkt. No.
In his § 2255 Motion, Gomez claims that he is entitled
to relief pursuant to Johnson v. United States,
U.S., 135 S.Ct. 2551 (2015). Dkt. No. 1 at 2.
to 28 U.S.C. § 2255, a defendant may move to vacate, set
aside or correct his sentence if: (1) the sentence was
imposed in violation of the Constitution or the laws of the
United States; (2) the district court was without
jurisdiction to impose the sentence; (3) the sentence imposed
was in excess of the maximum authorized by law; or (4) the
sentence is otherwise subject to collateral attack. 28 U.S.C.
§ 2255(a). The nature of a § 2255 collateral
challenge is extremely limited, being reserved for instances
of constitutional or jurisdictional magnitude. United
States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991). If
an error is not of constitutional magnitude, the movant must
show that the error could not have been raised on direct
appeal and would, if condoned, result in a complete
miscarriage of justice. United States v. Smith, 32
F.3d 194, 196 (5th Cir. 1994).
claims that he is entitled to § 2255 relief pursuant to
Johnson v. United States, ___ U.S. ___, 135 S.Ct.
2551 (2015). Dkt. No. 1 at 2. In Johnson, the
Supreme Court reviewed the lower court's application of
18 U.S.C. § 924(e), the Armed Career Criminal Act
(“ACCA”), to Samuel James Johnson's sentence.
Johnson, 135 S.Ct. 2551, 2555. The ACCA requires
federal courts to impose a minimum fifteen-year term of
imprisonment upon repeat offenders who are convicted of
unlawfully possessing a firearm under 18 U.S.C. §
992(g). 18 U.S.C. § 924(e). In relevant part, the ACCA
In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court . . .
for a violent felony or a serious drug offense, or both,
committed on occasions different from one another, such
person shall be . . . imprisoned not less than fifteen
18 U.S.C. § 924(e)(1).
ACCA provides six definitions for the term “violent
felony.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii). A
violent felony is any crime that: (1) “has as an
element the use, attempted use, or threatened use of physical
force against another person;” (2) constitutes
burglary; (3) constitutes arson; (4) constitutes extortion;
(5) involves the use of explosives; or (6) “otherwise
involves conduct that presents a serious potential risk of
physical injury to another.” Id. “Courts
have coined the first definition the ‘force
clause'; and the sixth definition, the ‘residual
clause.'” United States v. Curry, No. CR
10-111, 2015 WL 8478192, at *1 (E.D. La. Dec. 10, 2015)
(citing United States v. Davis, 487 F.3d 282, 285
(5th Cir. 2007)).
Supreme Court in Johnson held that imposing an
increased sentence under the residual clause of the ACCA is a
violation of due process because the clause is
unconstitutionally vague. Johnson, 135 S.Ct. 2551,
2557 (“[T]he residual clause both denies fair notice to
defendants and invites arbitrary enforcement by judges.
Increasing a defendant's sentence under the clause denies
due process of law.”). The Supreme Court did not reach
the issue of whether its ruling would apply retroactively.
Id. at 2551; see also Santiago Valdez v. United
States, No. 4:11-CR-065-A, 2015 WL 9593627, at *1 (N.D.
Tex. Dec. 31, 2015) (recognizing that the Supreme Court in
Johnson did not address retroactivity). ...