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United States v. Soto

United States District Court, S.D. Texas, Houston Division

September 14, 2017

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
MIGUEL SOTO, Defendant/Movant. Criminal Action No. H-10-0790-3

          MEMORANDUM AND RECOMMENDATION GRANTING UNITED STATES' MOTION TO DISMISS AND DENYING DEFENDANT'S § 2255 MOTION TO VACATE, SET ASIDE. OR CORRECT SENTENCE

          FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE.

         Before the Magistrate Judge in this federal habeas corpus proceeding pursuant to 28 U.S.C. § 2255 is the Government's Response and Motion to Dismiss (Document No. 546) and Defendant/ § 2255 Movant Miguel Soto's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence (Document No. 536). Having considered the § 2255 Motion to Vacate, Set Aside or Correct Sentence, the Government's Motion to Dismiss, the record of the proceedings in the underlying criminal case, and the applicable law, the Magistrate Judge RECOMMENDS, for the reasons set forth below, that the Government's Motion to Dismiss be GRANTED, that Movant's § 2255 Motion to Vacate, Set Aside or Correct Sentence be DENIED, and that this § 2255 proceeding be DISMISSED with prejudice.

         I. Introduction and Procedural History

         Movant Miguel Soto ("Soto"), who is currently in the custody of the United States Bureau of Prisons, is seeking federal habeas corpus relief under 28 U.S.C. § 2255. This is Soto's first motion pursuant to § 2255.

         On November 10, 2010, Soto was charged by Indictment, along with several co-Defendants, with conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A) and 846 (count 1), four counts of aiding and abetting the possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1), 841(b)(1)(A), and 18 U.S.C. § 2 (counts 2, 3, 4 and 5), conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(a)(1)(A) (count 7), and aiding and abetting money laundering, in violation of 18 U.S.C. § 1956(a)(1)(A)(i) (count 8) (Document No. 20). On April 27, 2012, Soto pled guilty to counts 1 and 7, and was thereafter sentenced, following the preparation of a presentence investigation report, to 216 months imprisonment on counts one and seven, to be followed by a five year term of supervised release. A Judgment of Conviction was entered on January 14, 2014 (Document No. 478). Soto did not appeal. Instead, more than two years after his conviction was final, Soto filed a § 2255 Motion to Vacate, Set Aside or Correct Sentence (Document No. 40), which is premised on the Supreme Court's decisions in Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). The Government has filed a Response and Motion to Dismiss (Document No. 546), arguing that Johnson is inapplicable and that Soto's § 2255 Motion is time-barred. Soto has not, to this date, filed a response to the Government's Motion to Dismiss.

         II. Claim

         In one claim, Soto appears to argue that a two point enhancement he was assessed under the Sentencing Guidelines is no longer valid given the Supreme Court's decision in Johnson. The Government, in response and in support of its Motion to Dismiss, contends that Soto's § 2255 Motion is time-barred because it was not filed within a year of his conviction becoming final, and because Johnson, which was determined to apply retroactively to cases on collateral review, has no applicability to Soto's conviction and sentence under 21 U.S.C. § 841 and 18 U.S.C. § 1956.

         III. Discussion

         In Johnson, the Supreme Court found that "an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process." Johnson, 135 S.Ct. at 2563. The "residual clause" at issue in Johnson is that part of 18 U.S.C. § 924(e)(2)(B)(ii) which defines a "violent felony" as "involv[ing] conduct that presents a serious potential risk of physical injury to another." The holding in Johnson was made retroactive to cases on collateral review in Welch.

         Since then, various other statutory provisions, including the "crime of violence" definition in 8 U.S.C. § 16(b), and provisions of the United States Sentencing Guidelines, have been challenged on the same due process grounds as that at issue in Johnson. While the Supreme Court has not yet addressed the due process challenges to like-worded statutory provisions, it has, in Beckles v. United States, ___S.Ct.___, 2017 WL 855781 (March 6, 2017), determined that the type of due process, void for vagueness challenges at issue in Johnson could not be made to like-worded provisions of the Sentencing Guidelines. In making that distinction, the Court in Beckles wrote:

This Court has held that the Due Process Clause prohibits the Government from "taking away someone's life, liberty, or property under a criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement." Johnson, 576 U.S., at___, 135 S.Ct., at 2556 (citing Kolender v. Lawson, 461 U.S. 352, 357-358, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983)). Applying this standard, the Court has invalidated two kinds of criminal laws as "void for vagueness": laws that define criminal offenses and laws that/a the permissible sentences for criminal offenses. Id., at 357, 103 S.Ct. 1855. For the latter, the Court has explained that "statutes fixing sentences, " Johnson, supra, at___, 135 S.Ct., at 2557 (citing United States v. Batchelder, 442 U.S. 114, 123, 99 S.Ct. 2198, 60 L.Ed.2d 755 (1979)), must specify the range of available sentences with "sufficient clarity, " id, at 123, 99 S.Ct. 2198; see also United States v. Evans, 333 U.S. 483, 68 S.Ct. 634, 92 L.Ed. 823 (1948); cf. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S.Ct. 518, 15 L.Ed.2d 447 (1966).
In Johnson, we applied the vagueness rule to a statute fixing permissible sentences. The ACCA's residual clause, where applicable, required sentencing courts to increase a defendant's prison term from a statutory maximum of 10 years to a minimum of 15 years. That requirement thus fixed-in an impermissibly vague way-a higher range of sentences for certain defendants. See Alleyne v. United States, 570 U.S.___, ___, 133 S.Ct. 2151, 2160-2161, 186 L.Ed.2d 314 (2013) (describing the legally prescribed range of available sentences as the penalty fixed to a crime).
Unlike the ACCA, however, the advisory Guidelines do not fix the permissible range of sentences. To the contrary, they merely guide the exercise of a court's discretion in choosing an appropriate sentence within the statutory range. Accordingly, the Guidelines are not subject to a vagueness challenge under the Due Process ...

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