United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM OPINION AND ORDER
D. RAINEY SENIOR U.S. DISTRICT JUDGE.
Erick Ronald Corrales-Lobo (Corrales-Lobo) filed a motion to
vacate, set-aside, or correct sentence pursuant to 28 U.S.C.
§ 2255. D.E. 21. The Court 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).
pled guilty to illegal reentry in violation of 8 U.S.C.
§ 1326(a) and (b)(2). The Probation Department prepared
a Presentence Investigation Report. The base offense level
for illegal reentry is 8. Because Corrales-Lobo was convicted
of aggravated assault in Georgia in 2003, his offense level
was enhanced by 12 for a prior crime of violence, resulting
in a total offense level of 17 after credit for acceptance of
responsibility. His criminal history category was IV,
yielding a guideline sentencing range of 37 to 46 months'
Court sentenced Corrales-Lobos to 27 months'
imprisonment. Judgment was entered on January 21, 2016. He
did not appeal. Corrales-Lobo filed his present motion on May
18, 2016. It is timely.
challenges his sentence pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015). He claims
Johnson precludes the use of the residual clause for
crimes of violence in the Sentencing Guidelines. He also
cites Dimaya v. Lynch, 803 F.3d 1110 (9th Cir.
2015), which held that § 16(b) of Title 8 of the United
States Code was unconstitutionally vague.
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).
offense level was enhanced pursuant to § 2L1.2(b)(1)(A)
of the Sentencing Guidelines. The application notes list
crimes of violence, in addition to describing them.
Id., application n. 1(B)(iii) (2014). Aggravated
assault is one of the listed crimes of violence. If Georgia
defines aggravated assault no more broadly than generic
aggravated assault referenced by the Guidelines,
Corrales-Lobo's conviction may be used to enhance his
offense level. If Georgia defines its crime more broadly, the
conviction may not be used to enhance. See Taylor v.
United States, 495 U.S. 575, 598 (1990).
was indicted and convicted of aggravated assault pursuant to
Georgia Code § 16-5-21. The Indictment recites that
Corrales-Lobos “did then and there unlawfully make an
assault upon the person of Jorge Marenco, with a pistol, a
deadly weapon, by shooting at Jorge Marenco . . .” D.E.
15, p. 5. Subsection 16-5-21(a) governs the conduct described
in Corrales-Lobo's Indictment without specifying the
particular subsection. It states:
person commits the offense of aggravated assault when ...