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United States v. Alvarez

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

May 25, 2017

UNITED STATES OF AMERICA
v.
JESUS ALVAREZ Civil Action No. 2:16-CV-250

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

          Janis Graham Jack Senior United States District Judge

         Jesus Alvarez filed a motion vacate, set-aside or correct sentence pursuant to 28 U.S.C. § 2255. D.E. 41. The Court has reviewed the § 2255 motion and concludes that summary dismissal is appropriate because “it plainly appears from the motion . . . and the record of prior proceedings that the moving party is not entitled to relief. . . .” Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts (2017) (2255 Rules). Alvarez' motion is dismissed and he is also denied a certificate of appealability.

         I. BACKGROUND

         Alvarez pleaded guilty in April 2010 to possession with intent to distribute 406.25 kilograms of marijuana. D.E. 20. The Court sentenced him to 188 months imprisonment as a career offender. Alvarez appealed, but the Fifth Circuit Court of Appeals dismissed his appeal on Alvarez' motion. D.E. 36. He filed the present motion on June 13, 2016.

         II. MOVANT'S CLAIMS

         Alvarez challenges the application of the Sentencing Guidelines career offender provisions based upon Johnson v. United States, 135 S.Ct. 2551 (2015). He also argues that the Court sentenced him outside the career offender guideline which means he is not really a career offender.[1]

         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

         Alvarez was sentenced as a career offender based upon two previous controlled substance offenses pursuant to § 4B1.1(b)(2).[2]

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. (emphasis added).

         Alvarez challenged his career offender status pursuant to Johnson. The Johnson court held that the residual clause defining a violent felony in 18 U.S.C. § 924(e) was unconstitutionally vague. Although the career offender sentencing guideline has a residual clause identical to the one held to be void for vagueness in Johnson, Johnson does not apply to the controlled substance portion of the definition. Moreover, Beckles v. United States, 137 S.Ct. 886, 892 (2017), held that a ...


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