United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge.
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.
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).
Applicable Legal Standards
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.
prevail on a claim for ineffective assistance of counsel,
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.
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
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