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United States v. Gutierrez-Hernandez

United States District Court, S.D. Texas, Corpus Christi Division

April 25, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BENJAMIN GUTIERREZ-HERNANDEZ, Defendant.

          MEMORANDUM OPINION AND ORDER DENYING MOTION TO VACATE, SET-ASIDE OR CORRECT SENTENCE AND DENYING A CERTIFICATE OF APPEALABILITY

          HAYDEN HEAD SENIOR U.S. DISTRICT JUDGE.

         Benjamin 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.

         I. BACKGROUND

         Gutierrez-Hernandez 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.

         II. MOVANT'S CLAIMS

         Gutierrez-Hernandez 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 seeks.

         III. ANALYSIS

         A. 28 U.S.C. § 2255

         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).

         B. Johnson Claim

         Gutierrez-Hernandez was sentenced as a career offender pursuant to § 4B1.1(b)(2).[1]

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. § 4B1.1.2(a)(2).

         Gutierrez-Hernandez 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 ...


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