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United States v. Melendez

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

May 1, 2017

UNITED STATES OF AMERICA
v.
JOSE RENE ALFARO MELENDEZ

          MEMORANDUM AND ORDER

          Kenneth M. Hoyt United States District Judge.

         Jose Rene Alfaro Melendez pled guilty to illegal re-entry into the United States after being convicted of an aggravated felony, in violation of 8 U.S.C. § 1326(a) and (b)(2). This Court sentenced him to a 30 month term of imprisonment and a $100 special assessment. See Judgment (Dkt. No. 27). This case is before the Court on Melendez' motion to vacate, set aside, or correct his sentence (Dkt. No. 31), and the government's motion to dismiss Melendez' motion (Dkt. No. 34). Having carefully considered Melendez' motion, the government's motion, all the arguments and authorities submitted by the parties, and the entire record, the Court is of the opinion that the government's motion should be granted, and Melendez' motion should be denied.

         I. Background

         Melendez was charged in a three count indictment with being a felon in possession of a firearm, being an illegal alien in possession of a firearm, and illegal re-entry into the United States after being convicted of an aggravated felony. The underlying felony was a 2008 conviction for theft in Fort Bend County, Texas. Melendez, a citizen of El Salvador, was previously removed from the United States in 2008 and 2012. Melendez pled guilty to illegal reentry pursuant to a written plea agreement. Plea Agreement (Dkt. No. 16).

         II. Applicable Legal Standards

         Melendez brings this motion under 28 U.S.C. § 2255, which provides for relief “for errors that occurred at trial or sentencing.” Jeffers v. Chandler, 253 F.3d 827, 830 (5th Cir. 2001). The motion contends that Melendez received ineffective assistance of counsel because counsel failed to object to the characterization of his prior felony theft conviction as an aggravated felony. Melendez argues that, under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his prior conviction cannot be considered a crime of violence, and that his sentence was therefore improperly enhanced.

         III. Analysis

         To prevail on a claim for ineffective assistance of counsel, Petitioner

must show that . . . counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed by the Sixth Amendment. Second, the [petitioner] must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to prevail on the first prong of the Strickland test, Petitioner must demonstrate that counsel's representation fell below an objective standard of reasonableness. Id. at 687-88. Reasonableness is measured against prevailing professional norms, and must be viewed under the totality of the circumstances. Id. at 688. Review of counsel's performance is deferential. Id. at 689.

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that a provision of the Armed Career Criminal Act (“ACCA”) is unconstitutionally vague. The ACCA, 18 U.S.C. § 924(e), provides for enhanced penalties for a defendant convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), if that defendant has three or more prior convictions “for a violent felony or a serious drug offense, or both . . . .” The statute defines “violent felony” as a crime that

(I) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, 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). In Johnson, the Supreme Court held that the residual clause of the ACCA, i.e., the clause enhancing penalties for a defendant previously convicted of a crime that “otherwise involves conduct that presents a serious potential risk of physical injury to another”, is unconstitutionally vague.

         Melendez argues that Johnson also renders the statute under which he was sentenced, 8 U.S.C. § 1101(a)(43)(F), unconstitutionally vague. That statute defines an aggravated felony as “a crime of violence (as defined in section 16 of Title 18, but not including a purely political offense) for which the term of imprisonment is at least one year.” He further contends that his counsel rendered ineffective ...


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