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United States v. Gutierrez

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

May 15, 2018

UNITED STATES OF AMERICA
v.
WILLIAM GUTIERREZ.

          MEMORANDUM OPINION AND ORDER

          KEITH P. ELLISON, UNITED STATES DISTRICT JUDGE

         Defendant 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.

         Having 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.

         I. BACKGROUND AND CLAIMS

         On 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).

         At the 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 of Maryland;
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 same individual.

(Docket Entry No. 47, pp. 18-20).

         In 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 ...


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