United States District Court, S.D. Texas, Victoria Division
MEMORANDUM OPINION & ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE.
Frank Trinidad has filed a motion to vacate, set aside, or
correct sentence pursuant to 28 U.S.C. § 2255 and
memorandum in support (D.E. 66, 67). Pending before the Court
is the United States of America's (the
“Government”) Motion for Summary Judgment (D.E.
73), to which Movant has not responded.
November 2004, Movant pled guilty to being a felon in
possession of a firearm and ammunition, in violation of 18
U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). The
firearms and ammunition involved in the offense were
discovered when sheriff's deputies, who suspected Movant
in a string of residential burglaries in Bee County, Texas,
in March and April of 2004, executed a search warrant at
Presentence Investigation Report (PSR) assigned Movant a base
offense level of 24. His offense level was increased by a
total of eight levels because the firearm was stolen, Movant
used the firearm in connection with another felony (burglary
of a habitation), and the offense involved four firearms, for
an adjusted offense level of 32. However, based on
Movant's three prior convictions for violent felonies
(all burglary of a habitation with intent to commit theft),
offense level became 34 under the Armed Career Criminal Act.
His criminal history points totaled 18, establishing a
criminal history category of VI. After credit for acceptance
of responsibility, Movant's advisory guideline range was
188-235 months' imprisonment, with a mandatory minimum
sentence of 15 years.
the terms of the plea agreement, Movant consented to a
sentence at the highest end of the applicable guideline
range. In return, the Bee County District Attorney agreed
that he would not prosecute Movant for the burglaries
occurring in Bee County in March and April of 2004 and/or
that were part of the same course of conduct as Movant's
federal offense. Accordingly, the Court sentenced Movant to
235 months, to be followed by 5 years' supervised
did not appeal his conviction or sentence. He did, however,
file a timely § 2255 motion, which the Court denied by
Memorandum Opinion & Order and Final Judgment entered
August 6, 2008. D.E. 30, 58, 61. Movant thereafter received
permission from the United States Court of Appeals for the
Fifth Circuit to file a successive § 2255 motion
asserting relief under Johnson v. United States, 135
S.Ct. 2551 (2015). D.E. 65. On August 22, 2016, Movant filed
his successive motion under § 2255 and memorandum in
are four cognizable grounds upon which a federal prisoner may
move to vacate, set aside, or correct his sentence: (1)
constitutional issues, (2) challenges to the district
court's jurisdiction to impose the sentence, (3)
challenges to the length of a sentence in excess of the
statutory maximum, and (4) claims that the sentence is
otherwise subject to collateral attack. 28 U.S.C. §
2255; United States v. Placente, 81 F.3d 555, 558
(5th Cir. 1996). “Relief under 28 U.S.C. § 2255 is
reserved for transgressions of constitutional rights and for
a narrow range of injuries that could not have been raised on
direct appeal and would, if condoned, result in a complete
miscarriage of justice.” United States v.
Vaughn, 955 F.2d 367, 368 (5th Cir. 1992).
“Moreover, a defendant ‘may not raise an issue
[constitutional or jurisdictional in nature] for the first
time on collateral review without showing both
‘cause' for his procedural default, and
‘actual prejudice' resulting from the
error.'” United States v. Segler, 37 F.3d
1131, 1133 (5th Cir. 1994) (quoting United States v.
Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc)).
§ 2255 motion raises a single claim: In light of
Johnson v. United States, 135 S.Ct. 2551 (2015), his
sentence enhancement based on three prior convictions for
burglary was unconstitutional because burglary does not have
as an element the use, attempted use, or threatened use of
physical force against the person of another.
was sentenced under the Armed Career Criminal Act (ACCA),
which provides that a person who possesses a gun in violation
of 18 U.S.C. § 922(g) after sustaining three prior
convictions for a “serious drug offense” or
“violent felony” faces a minimum prison term of
15 years and a maximum of life. 18 U.S.C. § 924(e)(1).
The ACCA defines the term “violent felony” to
mean any felony that: (i) “has as an element the use,
attempted use, or threatened use of physical force against
the person of another;” (ii) “is burglary, arson,
or extortion, [or] involves use of explosives, ” or
“otherwise involves conduct that presents a serious
potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(b) (emphasis added). The preceding
italicized text-also known as the “residual
clause”-was declared unconstitutionally vague by the
Supreme Court in Johnson v. United States, 135 S.Ct.
2551, 2563 (2015). However, the Court further stated that its
holding did “not call into question application of the
Act to the four enumerated offenses, or the remainder of the
Act's definition of a violent felony.” Id.
is an enumerated “violent felony” under the ACCA.
18 U.S.C. § 924(e)(2)(B)(ii). Still, in determining
whether Movant's convictions for burglary of a habitation
with intent to commit theft constitute “burglary”
for purposes of the ACCA, the Court must compare the elements
of Movant's offenses to the “generic, contemporary
meaning” of the crime of burglary. See Taylor v.
United States, 495 U.S. 575, 598 (1990). The Supreme
Court has concluded that “a person has been convicted
of burglary for purposes of a § 924(e) enhancement if he
is convicted of any crime, regardless of its exact definition