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Gomez v. United States

United States District Court, S.D. Texas, Brownsville Division

March 9, 2017

VICENTE MURO GOMEZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:10-cr-1055-1

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION.

          Ignacio Torteya, III United States Magistrate Judge.

         The 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”).[1] 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 appealability.

         I. Jurisdiction

         This Court has jurisdiction over Gomez's § 2255 Motion pursuant to 28 U.S.C. § 1331 and § 2255.

         II. Procedural History

         On 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.[2] 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. 1.[3] 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.

         III. Legal Standards

         Pursuant 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).

         IV. Discussion

         Gomez 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 provides:

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 years[.]

18 U.S.C. § 924(e)(1).

         The 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)).

         The 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). ...


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