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 U.S. DISTRICT JUDGE.
Gutierrez-Hernandez filed a motion vacate, set-aside or
correct sentence pursuant to 28 U.S.C. § 2255. D.E. 922.
The government responded and moved for summary dismissal.
D.E. 988. Gutierrez-Hernandez filed a reply. D.E. 991.
Gutierrez-Hernandez' motion is denied and he is also
denied a certificate of appealability.
pleaded guilty to possession with intent to distribute 3.66
grams of heroin and 3 grams of methamphetamine. D.E. 425. The
Court sentenced him to 151 months imprisonment as a career
offender. Gutierrez-Hernandez did not appeal. He filed the
present motion on June 1, 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 Gutierrez-Hernandez
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 possession with intent to
distribute less than 50 kilograms of marijuana in the Western
District of Texas in 2013 and burglary of a habitation in San
Patricio County, Texas in 1995. Gutierrez-Hernandez
challenges his burglary conviction as a proper ...