United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER DENYING MOTION TO
VACATE, SET-ASIDE OR CORRECT SENTENCE AND DENYING A
CERTIFICATE OF APPEALABILITY
HEAD SENIOR US. DISTRICT JUDGE
Bazaldua filed a motion vacate, set-aside or correct sentence
pursuant to 28 U.S.C. § 2255. D.E. 923. The government
responded and moved for summary dismissal. D.E. 989.
Bazaldua's motion is denied and he is also denied a
certificate of appealability.
pleaded guilty to possession with intent to distribute more
than 100 grams of heroin. D.E. 600. The Court sentenced him
to 100 months imprisonment. Bazaldua did not appeal. He filed
the present motion on June 6, 2016.
challenges the application of the Sentencing Guidelines
career offender provisions based upon Johnson v. United
States, 135 S.Ct. 2551 (2015) and Welch v. United
States, 136 S.Ct. 1257 (2016). The government argues
that Beckles v. United States, 137 S.Ct. 886, 892
(2017) forecloses the relief Bazaldua seeks.
28 U.S.C. § 2255
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).
was sentenced as a career offender pursuant to §
A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed
the instant offense of conviction; (2) the instant offense of
conviction is a felony that is either a crime of violence or
a controlled substance offense; and (3) the defendant has at
least two prior felony convictions of either a crime of
violence or a controlled substance offense.
Id. The sentencing guidelines defined crimes of
violence to include “burglary of a dwelling, arson, or
extortion, involves use of explosives . . . .” U.S.S.G.
had previous convictions for burglary of a habitation in
Nueces County, Texas in 2003 and delivery of cocaine in
Nueces County, Texas in 1997 for which he was sentenced to
four years imprisonment. As a result of those convictions, he
qualified as a career offender under the sentencing
guidelines. Bazaldua ...