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United States v. Trinidad

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

April 11, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
FRANK TRINIDAD, Defendant/Movant. Criminal No. 6:04-48

          MEMORANDUM OPINION & ORDER

          JOHN D. RAINEY SENIOR U.S. DISTRICT JUDGE.

         Defendant/Movant 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.

         I. Background

         In 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 Movant's residence.

         The 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), [1] his 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.

         Under 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 release.

         Movant 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 support.

         II. Legal Standard

         There 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)).

         III. Movant's Allegations

         Movant's § 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.

         IV. Analysis

         Movant 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.

         Burglary 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 or ...


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