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 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.
Court has jurisdiction over Tunchez's § 2255 Motion
pursuant to 28 U.S.C. § 1331 and § 2255.
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
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.
filed his instant § 2255 Motion on June 8, 2016. Dkt.
No. 1. 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.
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. 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
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