United States District Court, W.D. Texas, Austin Division
SPARKS, UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day, the Court reviewed the file in the
above-styled cause, and specifically Movant Ambrosio
Nolasco-Ariza's Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255 [#39]. Having considered
the motion, the governing law, and the file as a whole, the
Court now enters the following opinion and orders summarily
denying Nolasco-Ariza's motion.
January 12, 2017, Nolasco-Ariza pleaded guilty to illegal
re-entry of a deported alien in violation of 8 U.S.C. §
1326. The Court accepted Nolasco-Ariza's plea, and on
March 24, 2017, sentenced Nolasco-Ariza to a term of
imprisonment of 21 months to run consecutive to a term of
imprisonment imposed in A-13-CR-199(1)-SS in the amount of 18
months for a total term of imprisonment of 39 months. The
Court also ordered the sentence to be followed by a
three-year term of supervised release and ordered
Nolasco-Ariz to pay $ 100 as a mandatory assessment fee.
Nolasco-Ariza did not pursue a direct appeal.
March 13, 2018, Nolasco-Ariza executed the instant motion to
vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. In his motion, Nolasco-Ariza asks the Court to
vacate his three-year term of supervised release.
Nolasco-Ariza asserts he is a deportable alien and supervised
release is not required by statute.
Section 2255-Legal Standard
there are four grounds upon which a defendant may move to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255: (1) the imposition of a sentence in
violation of the Constitution or the laws of the United
States; (2) a lack of jurisdiction of the district court that
imposed the sentence; (3) the imposition of a sentence in
excess of the maximum authorized by law; and (4) 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). Section 2255 is an extraordinary measure; it
cannot be used for errors that are not constitutional or
jurisdictional if those errors could have been raised on
direct appeal. United States v. Stumpf, 900 F.2d
842, 845 (5th Cir. 1990). If the error is not of
constitutional or jurisdictional magnitude, the movant must
show the error could not have been raised on direct appeal
and would, if condoned, "result in a complete
miscarriage of justice." United States v.
Smith, 32 F.3d 194, 196 (5th Cir. 1994). In addition, a
defendant who raises a constitutional or jurisdictional issue
for the first time on collateral review must show both
"cause" for his procedural default, and
"actual prejudice" resulting from the error.
Placente, 81 F.3d at 558.
extent Nolasco-Ariza contends the Court erred in calculating
whether he should have a term of supervised release imposed
his claim is not cognizable in a motion for section 2255
relief. Technical application of the Sentencing Guidelines
does not give rise to constitutional issues. United
States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir.
1998); see also United States v. Larry, 312
Fed.Appx. 660, 661 (5th Cir. 2009) ("[Challenge to the
application of the Guidelines is not cognizable in a §
considering the merits of his claim, however,
Nolasco-Ariza's ground for relief is invalid. Although
the Court was not required to impose a term of supervised
relief, it was not error to do so. Under U.S.S.G. §
5D1.1, a "court ordinarily should not impose a term of
[SR] in a case in which [SR] is not required by statute and
the defendant is a deportable alien who likely will be
deported after imprisonment." § 5D 1.1(c). Section
5D 1.1(c) is advisory, and a district court discharges its
duties under § 5D1.1 (c) by considering the applicable
18 U.S.C. § 3553(a) factors of deterrence and protection
and by imposing a reasoned and individualized sentence under
the circumstances. United States v. Becerril-Pena,
714 F.3d 347, 350-51 (5th Cir. 2013). In the instant cause,
the Court determined an appropriate sentence, which included
a term of supervised release, for Nolasco-Ariza under the
§ 3553(a) factors. The imposition of supervised release
was not error. Accordingly, Nolasco-Ariza's motion is
appeal may not be taken to the court of appeals from a final
order in a proceeding under § 2255 "unless a
circuit justice or judge issues a certificate of
appealability." 28 U.S.C. § 2253(c)(1)(A). Pursuant
to Rule 11 of the Federal Rules Governing § 2255
Proceedings, effective December 1, 2009, a district court
must issue or deny a certificate of appealability (COA) when
it enters a final order adverse to the applicant.
may issue only if the movant has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. §
2253(c)(2). To meet that burden in cases where a district
court rejected a movant's constitutional claims on the
merits, "the petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the
constitutional claims debatable or wrong." Slack v.
McDaniel,529 U.S. 473, 484 (2000). "When a
district court denies a habeas petition on procedural grounds
without reaching the petitioner's underlying
constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it