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Tunchez v. United States

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

March 9, 2017

MARIO TREVINO TUNCHEZ, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 1:98-cr-158-2

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          Ignacio Torteya, III United States Magistrate Judge.

         The Court is in receipt of Mario Trevino Tunchez's pro se “Motion to Vacate, Correct Illegal Sentence Under 18:2255(B), (F)(3)” (hereinafter, Tunchez's “§ 2255 Motion”). Dkt. No. 1 (errors in original). For the reasons provided below, Tunchez'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 Tunchez'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 Tunchez's § 2255 Motion pursuant to 28 U.S.C. § 1331 and § 2255.

         II. Procedural History

         On May 13, 1998, Tunchez was found guilty of one count of possession and one count of conspiracy to possess with intent to distribute 648 kilograms of marihuana and 103 kilograms of cocaine, in violation of 21 U.S.C. §§ 841 and 846. See United States of America v. Mario Trevino Tunchez, No. 1:98-cr-158-2, Dkt. No. 70 at 1.[1] On July 22, 1998, United States District Judge Hilda Tagle sentenced Tunchez to 360 months of imprisonment and a five-year term of supervised release. Id. at 2-3. Judgment was entered on August 7, 1998. Id. at 1. Tunchez appealed to the Fifth Circuit of the United States Court of Appeals, which affirmed the district court's judgment on February 5, 2001. CR Dkt. No. 106.

         Tunchez filed his instant § 2255 Motion on June 8, 2016. Dkt. No. 1.[2] In his § 2255 Motion, Tunchez claims that she is entitled to relief pursuant to Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). Dkt. No. 1 at 1. Tunchez argues that Johnson held that “current crimes of violence no longer qualify for crimes of violence.” Id. (error in original). Tunchez also argues that the provision he was sentenced under is the same as those held unconstitutional in Johnson. Id. For the reasons provided below, Tunchez's arguments are misplaced, and his § 2255 Motion should be dismissed with prejudice.

         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

         Tunchez claims that he is entitled to § 2255 relief pursuant to Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015). Dkt. No. 1. In Johnson, the Supreme Court reviewed a lower court's application of 18 U.S.C. § 924(e), the Armed Career Criminal Act (“ACCA”). 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 ...


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