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
CERTIFICATE OF APPEALABILITY
HEAD SENIOR U.S. DISTRICT JUDGE
Maldonado (Maldonado) filed a motion vacate, set-aside or
correct sentence pursuant to 28 U.S.C. § 2255, a motion
to appoint counsel and a show cause motion. D.E.
29. The Government moved for summary judgment. D.E. 42.
Maldonado did not file a reply.
Court has jurisdiction pursuant to 28 U.S.C. § 1331.
BACKGROUND AND CLAIMS
pleaded guilty to possession with intent to distribute less
than 100 grams of heroin. The Probation Department prepared a
Presentence Investigation Report (PSR). Maldonado's base
offense level of 18 was calculated based upon the quantity of
heroin seized, 23.58 grams. However, Maldonado qualified as a
career offender pursuant to § 4B1.1. He had two
previous drug convictions, one federal and one state. As a
result, Maldonado's offense level was increased to 29
after credit for acceptance of responsibility. His criminal
history category was automatically increased to VI. As a
career offender, Maldonado's sentencing guideline range
was 151 to 188 months imprisonment.
sentencing, defense counsel argued that Maldonado should be
sentenced below the guidelines. The government recommended
151 months. The Court sentenced Maldonado to 120 months,
followed by five years supervised release. D.E. 18. Maldonado
did not appeal. Judgment was entered on the docket on October
11, 2013. Id.
challenges his sentence enhancement as a career offender
pursuant to Johnson v. United States, 135 S.Ct. 2551
(2015). By a supplemental motion, he also argues that he is
actually innocent of career offender status because one of
his previous convictions no longer qualifies as a controlled
substance offense. He also requested that the Court stay
these proceedings until after the Supreme Court decided
Beckles v. United States, 137 S.Ct. 886 (2017).
Government argues that the Court should deny the motion on
the following grounds: 1) Maldonado waived his right to file
a § 2255 motion, 2) the motion is untimely, and 3) it is
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 ...