United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
P. ELLISON, UNITED STATES DISTRICT JUDGE
William Gutierrez, proceeding pro se, filed a motion
to vacate, set aside, or correct his sentence under 28 U.S.C.
§ 2255. (Docket Entry No. 52.) The Government filed a
motion for summary judgment on December 11, 2017, and served
defendant a copy at his address of record that same date.
(Docket Entry No. 57.) Despite expiration of a reasonable
period of time in excess of five months, defendant has failed
to respond to the motion, and the motion for summary judgment
is deemed uncontested.
reviewed the section 2255 motion, the Government's motion
for summary judgment, the record, and the applicable law, the
Court GRANTS the motion for summary judgment
and DENIES the section 2255 motion for the
reasons that follow.
BACKGROUND AND CLAIMS
February 5, 2015, without a plea agreement, defendant pleaded
guilty to illegal reentry into the United States, in
violation of 8 U.S.C. § 1326(a) and (b)(2). The Court
subsequently sentenced defendant on October 14, 2015, to 67
months of imprisonment, with no supervised release or fine.
Defendant's direct appeal was dismissed as frivolous
pursuant to Anders v. California, 386 U.S. 738
(1967), and United States v. Flores, 632 F.3d 229
(5th Cir. 2011). See United States v. William
Gutierrez, Appeal No. 15-20595 (5th Cir. Jan. 5, 2017).
plea hearing, the Government recited the following facts that
would have been proved at trial:
The defendant is a citizen and national of the Republic of
Honduras and not a citizen of the United States;
On September 24, 1998, the defendant was convicted in Los
Angeles, California, for the offense of selling, transporting
a controlled substance;
On September 16, 1999, the defendant was convicted in Los
Angeles, California, for the offense of possession of cocaine
base for sale;
On ... April 29, 2002, the defendant was convicted of the
second offense of burglary in Riverside, California;
On September 4, 2009, the defendant was convicted for illegal
reentry of a deported alien after conviction for an
aggravated felony offense in the United States District Court
The defendant has been deported from the United States five
times, with the last deportation on December 17, 2012;
On July 29, 2014, the defendant was found in the United
States in Houston, Texas;
A record search of the defendant's A-file reveals no
evidence that he had ever obtained consent from either the
Attorney General or the Secretary of the Department of
Homeland Security prior to reentering the United States;
A fingerprint analyst examined and compared fingerprints of
the defendant here in court to the warrants of deportation
and conviction documents, and determined that they are the
(Docket Entry No. 47, pp. 18-20).
response to questions from the Court, defendant stated that
he understood the facts as recited by the Government and that
the facts were true. Id., p. 20. He further
confirmed on the record in open court his understanding that
the maximum sentence he faced was up to 20 years in prison, a
fine of up ...