United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND RECOMMENDATION GRANTING UNITED
STATES' MOTION TO DISMISS AND DENYING DEFENDANT'S
§ 2255 MOTION TO VACATE, SET ASIDE. OR CORRECT
FRANCES H. STACY UNITED STATES MAGISTRATE JUDGE.
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.
Introduction and Procedural History
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.
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
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.
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
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 ...