United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER DISMISSING MOTION TO
VACATE, SET ASIDE OR CORRECT SENTENCE AND DENYING A
CERTIFICATE OF APPEALABILITY
Graham Jack Senior United States District Judge
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.
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.
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.
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 based upon two previous
controlled substance offenses 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. (emphasis added).
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 ...